{"id":30940,"date":"2022-07-27T14:35:47","date_gmt":"2022-07-27T19:35:47","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/constitution\/amendment8\/annotation01.html"},"modified":"2022-07-27T14:35:47","modified_gmt":"2022-07-27T19:35:47","slug":"annotation01","status":"publish","type":"constitution","link":"https:\/\/constitution.findlaw.com\/amendment8\/annotation01.html","title":{"rendered":"Eighth Amendment Protection Against Cruel and Unusual Punishment"},"content":{"rendered":"\n
\n \n
\n

Eighth Amendment Protection Against Cruel and Unusual Punishment<\/h1>\n
\n
\n By FindLaw Staff<\/a> | Legally reviewed by Laura Temme, Esq.<\/a>\n | Last reviewed\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
\n

This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
\n

The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

\n

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.<\/p>\n\n <\/div>\n\n

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."<\/p>\r\n

If you’ve been charged with or convicted of a crime, it’s important to have the help of an attorney. A skilled local defense attorney<\/a> can help you protect your constitutional rights. <\/i><\/p>\r\n

What the Eighth Amendment Says<\/h2>\r\n

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."<\/i><\/p>\r\n

What It Means<\/h2>\r\n

\u200bUnited States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation<\/i><\/b><\/p>\r\n

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<\/sup> In Weems v. United States<\/a><\/i>,2<\/sup> 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<\/sup> 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<\/sup> 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<\/sup><\/p>\r\n

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<\/sup> Nonetheless, in the context of capital punishment, the Court has upheld the use of a firing squad7<\/sup> and electrocution,8<\/sup> generally viewing the Eighth Amendment to prohibit punishments that "involve the unnecessary and wanton infliction of pain."9 <\/sup>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<\/sup><\/p>\r\n

Divestiture of the citizenship of a natural-born citizen was held to be cruel and unusual punishment in Trop v. Dulles<\/a><\/i>.11<\/sup> 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<\/sup><\/p>\r\n

Proportionality<\/h2>\r\n

In O’Neil v. Vermont<\/a><\/i>,13<\/sup> 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<\/a><\/i>,14<\/sup> 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<\/sup> Punishments as well as fines, therefore, can be condemned as excessive.16<\/sup><\/p>\r\n

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<\/a><\/i>,17<\/sup> 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<\/i> 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.<\/p>\r\n

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<\/i> 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<\/sup><\/p>\r\n

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<\/sup><\/p>\r\n

Rummel<\/i> was distinguished in Solem v. Helm<\/a><\/i>,20<\/sup> 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 <\/sup>Helm, like Rummel, had been sentenced under a recidivist statute following conviction for a nonviolent felony involving a small amount of money.22<\/sup> 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<\/i>."23<\/sup> 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<\/i> exercise of clemency.’"24<\/sup><\/p>\r\n

The Solem<\/i> Court also spelled out the objective criteria by which proportionality issues should be judged:<\/p>\r\n