How do we define “cruel and unusual” Part I

The 8^th Amendment of the Constitution of the United States guarantees that the federal government shall not inflict on any person, any punishment that is deemed ‘cruel and unusual.’

The Eighth Amendment (Amendment VIII) to the United States Constitution is the part of the United States Bill of Rights (ratified December 15, 1791[1]) prohibiting the federal government from imposing excessive bail, excessive fines, or cruel and unusual punishment. The U.S. Supreme Court has ruled that this amendment’s Cruel and Unusual Punishment Clause also applies to the states. The phrases in this amendment originated in the English Bill of Rights of 1689.

So how does the federal government and independent states define cruel and unusual punishment? An interesting question to be sure, and one that has been asked since its appearance in the 1689 original Bill of Rights.

Is there really a definitive answer?

According to the Supreme Court, the Eighth Amendment forbids some punishments entirely, and forbids some other punishments that are excessive when compared to the crime, or compared to the competence of the perpetrator.

Let’s begin with the 1972 case of Furman v. Georgia. In the appeal of this case, then Justice Brennen outlined 4 principles that define the constitutional definition of cruel and unusual. They are as follows:

1. The “essential predicate” is “that a punishment must not by its severity be degrading to human dignity,” especially torture.
2. “A severe punishment that is obviously inflicted in wholly arbitrary fashion.”
3. “A severe punishment that is clearly and totally rejected throughout society.”
4. “A severe punishment that is patently unnecessary.”

Punishments forbidden regardless of the crime

In Wilkerson v. Utah, 99 U.S. 130 (1878), the Supreme Court commented that drawing and quartering, public dissection, burning alive, or disembowelment constituted cruel and unusual punishment.

 In Thompson v. Oklahoma, 487 U.S. 815 (1988), the Supreme Court ruled that the death penalty constituted cruel and unusual punishment if the defendant is under age 16 when the crime was committed.

 Furthermore, in Roper v. Simmons, 543 U.S. 551 (2005), the Court barred the executing of people who were under age 18 when the crime was committed. In Atkins v. Virginia, 536 U.S. 304 (2002), the Court declared that executing people who are mentally handicapped constituted cruel and unusual punishment.

Herein I believe lies part of the defining process. Taking Brennan’s definition, and starting with item one, many of the actions, with the exception of torture (at least as far as we know), human dignity is practically non-existent in today’s correctional facilities. As for human degradation, that is part of the very fiber of prison life, be it from prison guards, other inmates or state employees.

As to item number 2, a classic case of arbitrary punishment can be seen in the movie “Shawshank Redemption”. Yes, the prison is real and is located in Ohio. But I digress. Let’s continue.

In summary of the above, we can conclude that torture, disembowelment, death penalty for minors, and human degradation all fall under the term ‘cruel and unusual’ punishment.

Now the question is, how does one define and justify this term in relation to both the death penalty and life on death row? Actually it can’t.

Inmates are still being tortured, harassed, beaten, and let’s not forget total isolation. Is there any crime that a person could commit that would justify any of these types of treatment? Many people believe so.

In trying to understand the death penalty and the CAU treatment protection, let’s consider the life an inmate leads while awaiting their execution.

Part II coming in January 2016