Annotation 4 - Eighth Amendment

Style of Interpretation .--At first, the Court was inclined to an historical style on interpretation, determining whether or not a punishment was ''cruel and unusual'' by looking to see if it or a sufficiently similar variant was considered ''cruel and unusual'' in 1789. 39 But in Weems v. United States 40 it was 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 character'' 41 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.'' 42 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. 43  


[Footnote 39] Wilkerson v. Utah, 99 U.S. 130 (1878); In re Kemmler, 136 U.S. 436 (1890); cf. Weems v. United States, 217 U.S. 349, 368 -72 (1910). On the present Court, Chief Justice Rehnquist subscribes to this view (see, e.g., Woodson v. North Carolina, 428 U.S. 280, 208 (dissenting)), and the views of Justices Scalia and Thomas appear to be similar. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 966 -90 (1991) (Justice Scalia announcing judgment of Court) (relying on original understanding of Amendment and of English practice to argue that there is no proportionality principle in non-capital cases); and Hudson v. McMillian, 112 S. Ct. 995, 1010 (1992) (Justice Thomas dissenting) (objecting to Court's extension of the Amendment ''beyond all bounds of history and precedent'' in holding that ''significant injury'' need not be established for sadistic and malicious beating of shackled prisoner to constitute cruel and unusual punishment).

[Footnote 40]   217 U.S. 349 (1910).

[Footnote 41] Id. at 376-77.

[Footnote 42] Trop v. Dulles, 356 U.S. 86, 100 -01 (1958) (plurality opinion).

[Footnote 43] See Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause, 126 U. Pa. L. Rev. 989 (1978).

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