Cruel and Unusual Punishment 


Fundamentals of Criminal Law

Adam J. McKee, Ph.D.

Jack Brown Ph.D.


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Cruel and Unusual Punishment

The prohibition against cruel and unusual punishment comes from the Eighth Amendment, which states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” State constitutions often have similar provisions.  This 8th Amendment protection does not define the words “cruel” and “unusual.” They have never adequately been defined. The courts have followed an approach that makes a distinction between “ancient” and “modern” forms of punishment. Ancient methods are generally unconstitutional while most modern methods are upheld.

The most commonly discussed issue surrounding the 8th Amendment and the criminal justice system is the death penalty.  The SCOTUS has interpreted the Amendment to prohibit inhumane punishments. By a very narrow margin, the Court has determined that capital punishment is not inhumane if the sentence is carried out under very specific condition.  Many of those issues relate to the nature of the crime, the characteristics of the offender, and the method of execution. Conservative critics of these cases have argued that the Court has circumscribed the death penalty to such an extent that it is in practice no longer a viable sanction.  Critics on the other side of the political fence consider the punishment to be barbaric and beneath the dignity of the state in all cases. This debate has raged for years, and the future of the death penalty in the United States will likely hinge on the future composition of the High Court. It is unlikely that the political economists who point out that the death penalty is a colossal waste of taxpayer money with no empirically demonstrated benefit are not likely to be heard over the shouting across the political divide.    

Recent controversy has arisen concerning the extended sentences created by habitual offender laws. Most of these questions center on the doctrine of proportionality. Obviously, if the Court has interpreted the Constitution to mean that proportionate punishments are required, then disproportionate punishments are unconstitutional.  Disproportionate punishment is a different issue than inhumane punishment, but it is still within the parameters of the Eighth Amendment. Disproportionate punishment asserts that a criminal punishment is too severe for the crime. For example, in Soelm v. Helm, the USSC ruled that a series of relatively minor nonviolent crimes could not be used to sentence a person to life in prison.

References and Further Reading

“Cruel and Unusual Punishment.” Encyclopedia of Crime and Justice. Retrieved September 21, 2018 from Encyclopedia.com: http://www.encyclopedia.com/law/legal-and-political-magazines/cruel-and-unusual-punishment

“Cruel and Unusual Punishment.” Encyclopedia of the American Constitution. Retrieved September 21, 2018 from Encyclopedia.com: http://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/cruel-and-unusual-punishment

Modification History

File Created:  07/12/2018

Last Modified:  09/26/2018

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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