The protection against cruel and unusual punishment has existed for much longer than the United States Constitution. Various forms of this right have been seen in American and British governments since the 1600s. Proponents of the Eighth Amendment to the Constitution argued that without it, the government would abuse its power. And in the years that followed, the Supreme Court had to decide what types of punishments fall under the definition of "cruel and unusual."
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"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
At first, the Supreme Court was inclined to a historical style of interpretation, determining whether a punishment was cruel and unusual by looking to see if it or a sufficiently similar variant had been considered cruel and unusual in 1789.1 In Weems v. United States,2 however, the Court concluded that the framers had not merely intended to bar the reinstitution of procedures and techniques condemned in 1789, but had intended to prevent the authorization of a coercive cruelty being exercised through other forms of punishment. The Amendment, therefore, was of an expansive and vital character3 and, in the words of a later Court, must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.4 The proper approach to an interpretation of this provision has been one of the major points of difference among the Justices in the capital punishment cases.5
Well over a century ago, the Court began defining limits on the scope of criminal punishments allowed under the Eighth Amendment, noting that while "[d]ifficulty 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," "it is safe to affirm that punishments of torture," such as drawing and quartering, disemboweling alive, beheading, public dissection, and burning alive, are "forbidden by . . . [the] Constitution."6 Nonetheless, in the context of capital punishment, the Court has upheld the use of a firing squad7 and electrocution,8 generally viewing the Eighth Amendment to prohibit punishments that "involve the unnecessary and wanton infliction of pain."9 In three more cases, the Supreme Court held that the various lethal injection protocols withstood scrutiny under the Eighth Amendment, finding that none of the challenged protocols presented a "substantial risk of serious harm" or an "objectively intolerable risk of harm."10
Divestiture of the citizenship of a natural-born citizen was held to be cruel and unusual punishment in Trop v. Dulles.11 The Court viewed divestiture as a penalty more cruel and "more primitive than torture," because it entailed statelessness or "the total destruction of the individual's status in organized society." "The question is whether [a] penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment." A punishment must be examined "in light of the basic prohibition against inhuman treatment," and the Amendment was intended to preserve the "basic concept . . . [of] the dignity of man by assuring that the power to impose punishment is exercised within the limits of civilized standards."12
In O'Neil v. Vermont,13 Justice Field argued in dissent that, in addition to prohibiting punishments deemed barbarous and inhumane, the Eighth Amendment also condemned all punishments which by their excessive length or severity are greatly disproportionate to the offenses charged. In Weems v. United States,14 the Court adopted this view in striking down a sentence in the Philippine Islands of 15 years incarceration at hard labor with chains on the ankles, loss of all civil rights, and perpetual surveillance, for the offense of falsifying public documents. The Court compared the sentence with those meted out for other offenses and concluded: This contrast shows more than different exercises of legislative judgment. It is greater than that. It condemns the sentence in this case as cruel and unusual. It exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice.15 Punishments as well as fines, therefore, can be condemned as excessive.16
The Court has gone back and forth in its acceptance of proportionality analysis in non-capital cases. It appeared that such analysis had been closely cabined in Rummel v. Estelle,17 upholding a mandatory life sentence under a recidivist statute following a third felony conviction, even though the defendant's three nonviolent felonies had netted him a total of less than $230. The Court reasoned that the unique quality of the death penalty rendered capital cases of limited value and distinguished Weems on the ground that the length of the sentence was of considerably less concern to the Court than were the brutal prison conditions and the post-release denial of significant rights imposed under the peculiar Philippine penal code.
Thus, in order to avoid improper judicial interference with state penal systems, Eighth Amendment judgments must be informed by objective factors to the maximum extent possible. But when the challenge to punishment goes to the length rather than the seriousness of the offense, the choice is necessarily subjective. Therefore, the Rummel rule appeared to be that states may punish any behavior properly classified as a felony with any length of imprisonment purely as a matter of legislative grace.18
The Court dismissed as unavailing the factors relied on by the defendant. First, the fact that the nature of the offense was nonviolent was found not necessarily relevant to the seriousness of a crime, and the determination of what is a small amount of money, being so subjective, was a legislative task. In any event, the state could focus on recidivism, not the specific acts. Second, the comparison of punishment imposed for the same offenses in other jurisdictions was found unhelpful, differences and similarities being more subtle than gross, and in any case in a federal system one jurisdiction would always be more severe than the rest. Third, the comparison of punishment imposed for other offenses in the same state ignored the recidivism aspect.19
Rummel was distinguished in Solem v. Helm,20 the Court stating unequivocally that the Cruel and Unusual Punishments Clause prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed, and that [t]here is no basis for the State's assertion that the general principle of proportionality does not apply to felony prison sentences.21 Helm, like Rummel, had been sentenced under a recidivist statute following conviction for a nonviolent felony involving a small amount of money.22 The difference was that Helm's sentence of life imprisonment without possibility of parole was viewed as "far more severe than the life sentence we considered in Rummel v. Estelle."23 Rummel, the Court pointed out, "was likely to have been eligible for parole within 12 years of his initial confinement," whereas Helm had only the possibility of executive clemency, characterized by the Court as "nothing more than a hope for 'an ad hoc exercise of clemency.'"24
The Solem Court also spelled out the objective criteria by which proportionality issues should be judged:
Measured by these criteria, Helm's sentence was cruel and unusual. His crime was relatively minor, yet life imprisonment without the possibility for parole was the harshest penalty possible in South Dakota, reserved for such other offenses as murder, manslaughter, kidnapping, and arson. In only one other state could he have received so harsh a sentence, and in no other state was it mandated.26
The Court remained closely divided in holding in Harmelin v. Michigan27 that a mandatory term of life imprisonment without possibility of parole was not cruel and unusual as applied to the crime of possession of more than 650 grams of cocaine. There was an opinion of the Court only on the issue of the mandatory nature of the penalty, the Court rejecting an argument that sentencers in non-capital cases must be allowed to hear mitigating evidence.28 As to the length of sentence, three majority Justices—Kennedy, O'Connor, and Souter—would recognize a narrow proportionality principle, but considered Harmelin's crime severe and by no means grossly disproportionate to the penalty imposed.29
Twelve years after Harmelin the Court still could not reach a consensus on rationale for rejecting a proportionality challenge to California's three-strikes law, as applied to sentence a repeat felon to 25 years to life imprisonment for stealing three golf clubs valued at $399 apiece.30 A plurality of three Justices (O'Connor, Kennedy, and Chief Justice Rehnquist) determined that the sentence was justified by the State's public safety interest in incapacitating and deterring recidivist felons, and amply supported by [the petitioner's] long, serious criminal record, and hence was not the rare case of gross disproportional[ity].31 The other two Justices voting in the majority were Justice Scalia, who objected that the proportionality principle cannot be intelligently applied when the penological goal is incapacitation rather than retribution,32 and Justice Thomas, who asserted that the Cruel and Unusual Punishments Clause contains no proportionality principle.33 Not surprisingly, the Court also rejected a habeas corpus challenge to California's three-strikes law for failure to clear the statutory hurdle of establishing that the sentencing was contrary to, or an unreasonable application of, clearly established federal law.34 Justice O'Connor's opinion for a five-Justice majority explained, in understatement, that the Court's precedents in the area "have not been a model of clarity . . . that have established a clear or consistent path for courts to follow."35
Declaring that [t]he concept of proportionality is central to the Eighth Amendment, Justice Kennedy, writing for a five-Justice majority in Graham v. Florida,36 held that "[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide."37 Justice Kennedy characterized proportionality cases as falling within two general types. The first type comprises challenges to the length of actual sentences imposed as being grossly disproportionate, and such challenges are resolved under approaches taken in Solem, Harmelin, and similar cases. The second type comprises challenges to particular sentencing practices as being categorically impermissible, but categorical restrictions had theretofore been limited to imposing the death penalty on those with diminished capacity. In Graham, Justice Kennedy broke new ground and recognized a categorical restriction on life without parole for nonhomicide offenses by juveniles, citing considerations and applying analysis similar to those used in his juvenile capital punishment opinion in Roper.38 In considering objective indicia of a national consensus on the sentence, the Graham opinion looked beyond statutory authorization — thirty-seven states and the District of Columbia permitted life without parole for some juvenile nonhomicide offenders — to actual imposition, which was rare outside Florida. Justice Kennedy also found support in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over.39 After finding that a consensus had developed against the sentencing practice at issue, Justice Kennedy expressed an independent judgment that imposing life without parole on juveniles for nonhomicide offenses failed to serve legitimate penological goals adequately.40 Factors in reaching this conclusion included the severity of the sentence, the relative culpability of juveniles, and the prospect for their rehabilitation.41
The concept of proportionality also drove Justice Kagan's analysis in Miller v. Alabama, a case questioning the imposition of mandatory life imprisonment without parole on juveniles convicted of homicide.42 Her analysis began by recounting the factors, stated in Roper and Graham, that mark children as constitutionally different from adults for purposes of sentencing: Children have diminished capacities and greater prospects for reform.43 Nevertheless, these factors, even when coupled with the severity of a life without parole sentence, did not lead Justice Kagan to bar life without parole for juveniles in homicide cases categorically.44 Her more immediate concern was that the mandatory life sentences in Miller left no room for a sentencer to consider a juvenile offender's special immaturity, vulnerability, suggestibility, and the like.45 In Justice Kagan's view, a process that mandates life imprisonment without parole for juvenile offenders is constitutionally flawed because it forecloses any consideration of the hallmark distinctions of youth in meting out society's severest penalties.46
The Eighth Amendment deals only with criminal punishment and has no application to civil processes. In holding the Amendment inapplicable to the infliction of corporal punishment upon schoolchildren for disciplinary purposes, the Court explained that the Cruel and Unusual Punishments Clause circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes; second, it proscribes punishment grossly disproportionate to the severity of the crime; and third, it imposes substantive limits on what can be made criminal and punished as such.47 These limitations, the Court thought, should not be extended outside the criminal process.