Simone Lawson
The phrase cruel and unusual punishment was first used in the English Bill of Rights in 1689, and later adopted in the United States by the Eighth Amendment in 1791. The Eighth Amendment prohibits the federal government from imposing unduly harsh penalties on criminal defendants, either as punishment for a crime or as the price for obtaining pretrial release. The death penalty, also known as capital punishment, is a state-sanctioned punishment for specific crimes. While the Supreme Court has ruled that the death penalty does not violate the Eighth Amendment, there is much debate as to whether capital punishment constitutes cruel and unusual punishment. Opponents argue that capital punishment fails to advance any public good and should be eliminated, while proponents argue that some people commit such atrocious crimes that they deserve death. The Supreme Court has identified three main categories of cases where the death penalty constitutes cruel and unusual punishment: executing intellectually disabled individuals, applying the death penalty to minors, and applying the death penalty to non-murder cases.
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What You'll Learn
The death penalty and the Eighth Amendment
The Eighth Amendment to the United States Constitution, ratified in 1791, states:
> "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
The Cruel and Unusual Punishments Clause is the most important and controversial part of the Eighth Amendment. It prohibits the federal government from imposing unduly harsh penalties on criminal defendants, either as punishment for a crime after conviction or as the price for obtaining pretrial release.
The precise definition of "cruel and unusual punishment" varies by jurisdiction, but it typically includes punishments that are arbitrary, unnecessary, or overly severe compared to the crime. The United States Supreme Court has set the standard that a punishment would be cruel and unusual if it is too severe for the crime, if it is arbitrary, if it offends society's sense of justice, or if it is not more effective than a less severe penalty.
The death penalty, or capital punishment, is the state-sanctioned punishment of executing an individual for a specific crime. The Supreme Court has ruled that the death penalty itself does not violate the Eighth Amendment's ban on cruel and unusual punishment. However, the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out. The Court has consistently ruled that some applications of the death penalty are "cruel and unusual". For example, the Court has ruled that the execution of intellectually disabled individuals, those with mental retardation, or those under the age of 18 at the time of their crime is unconstitutionally cruel and unusual.
In Furman v. Georgia (1972), the Supreme Court ruled that the way the death penalty was administered at the time was unconstitutional as it violated the Eighth Amendment. Specifically, death sentences were disproportionately applied based on factors such as race, and discriminated against impoverished and minority communities. This decision marked a significant shift in the Court's approach to capital punishment and effectively placed a moratorium on capital punishment in the United States.
The Supreme Court has also ruled that the Eighth Amendment may be violated due to factors related to a prisoner's confinement. For example, a prison guard's deliberate indifference to a prisoner's serious illness or injury would constitute cruel and unusual punishment.
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Capital punishment's historical context
The concept of "cruel and unusual punishment" was first introduced in the English Bill of Rights in 1689. The phrase was later adopted in the United States by the Eighth Amendment to the U.S. Constitution in 1791. The Eighth Amendment states:
> Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
This amendment prohibits the federal government from imposing unduly harsh penalties on criminal defendants, either as punishment for a crime or as the price for obtaining pretrial release. The Cruel and Unusual Punishments Clause is the most important and controversial part of the Eighth Amendment.
In the context of capital punishment, the historical context is crucial. For most of recorded history, capital punishments were often deliberately cruel, painful, and/or degrading. Severe historical execution methods include hanging, drawing and quartering, boiling to death, burning, drowning, feeding to animals, starvation, crushing, stoning, dismemberment, and many other gruesome practices.
In the United States, the Supreme Court has ruled that the death penalty itself does not violate the Eighth Amendment's ban on cruel and unusual punishment. However, certain applications of the death penalty have been deemed "cruel and unusual." For example, the execution of intellectually disabled individuals, minors, and incompetent people has been ruled unconstitutional. Additionally, the Court has invalidated death penalty laws that were applied in a racially discriminatory manner or disproportionately impacted the poor and minority communities.
The debate surrounding capital punishment continues, with arguments focusing on its effectiveness in deterring atrocious crimes, its public support, and the potential for wrongful convictions.
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Public opinion on capital punishment
In the United States, public opinion polls have shown that support for capital punishment has been declining over the last three decades, reaching near-historic lows. This shift in attitude is reflected in the increasing support for alternatives to the death penalty, such as life without parole (LWOP) or lengthy imprisonment. For example, in 2019, 60% of respondents to a Gallup poll indicated that they considered LWOP a more appropriate punishment for murder than the death penalty.
Racial disparities in the implementation of capital punishment have also influenced public opinion. According to the American Civil Liberties Union (ACLU), the death penalty is imposed on people of color disproportionately by 43%. This disparity, along with the exoneration of individuals on death row and the sheer number of people awaiting execution, has contributed to a decline in support for capital punishment.
Public opinion polls, however, have limitations in capturing the complexities of the issue. Standard polling questions often fail to consider the availability of alternative sentences, the risks of mistake and bias, and the costs associated with capital punishment. Additionally, poll results can vary depending on the wording of the questions and the polling firm. As such, the Supreme Court has been reluctant to rely solely on opinion polls to determine societal standards of decency regarding punishment. Instead, they consider the actions of state legislatures, jury decisions, and the choices made by prosecutors and governors to reflect public will more accurately.
Overall, public opinion on capital punishment is dynamic and influenced by various factors, including moral and philosophical stances, racial disparities, and the availability of alternatives. The continued evolution of public sentiment will play a pivotal role in shaping the future of capital punishment in the United States and other parts of the world.
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The death penalty and racial discrimination
The death penalty has been a topic of intense debate, with questions arising around its ethical implications, effectiveness as a deterrent, and its potential to constitute cruel and unusual punishment. In the United States, the Eighth Amendment prohibits the federal government from imposing unduly harsh penalties, and the death penalty is not exempt from this. However, the death penalty has been a tool of racial injustice and discrimination, with people of colour, particularly Black people, facing disproportionate sentencing and execution.
Racial discrimination in the application of the death penalty is not a new phenomenon. From the era of slavery to Jim Crow, and continuing into the present day, the death penalty has been wielded disproportionately against Black people and other people of colour. During slavery, Black individuals faced the death penalty for crimes that would not have been eligible for death sentences if committed by white people. This racial bias persisted into the 20th century, with lynching becoming a form of extra-judicial execution primarily targeting Black people.
Even in modern times, racial disparities in capital punishment persist. A 2005 study in California found that homicides with white victims were 3.7 times more likely to result in the death penalty than those with African American victims, and 4.73 times more likely than those with Hispanic victims. This indicates that the race of the victim plays a significant role in sentencing. Furthermore, people of colour, particularly Black defendants, have been sentenced to death even for non-lethal crimes, while whites are typically executed only after being convicted of murder.
The United States Supreme Court has acknowledged the presence of racial bias in the death penalty system. In the landmark case of McCleskey v. Kemp, the Court recognised the existence of racial bias but ruled that it did not violate the Constitution. This ruling underscores the complexity of addressing racial discrimination in the context of capital punishment.
The impact of racial bias in the death penalty is further exacerbated by the potential for innocent individuals to be wrongfully convicted and executed. Since the 1970s, 154 people have been proven innocent after being sentenced to death, raising serious concerns about the fairness and reliability of the system. The probability of executing innocent individuals adds another layer of cruelty to the death penalty, particularly when considering the disproportionate number of people of colour on death row.
In conclusion, while the death penalty as a whole may be subject to debate, it is evident that racial discrimination permeates its application. The disproportionate impact on people of colour, particularly Black individuals, cannot be ignored. Addressing these disparities and working towards a more just and equitable criminal justice system is crucial to mitigating the cruel and unusual nature of capital punishment in the United States.
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Cruel and unusual punishment in other jurisdictions
The phrase "cruel and unusual punishment" was first used in the English Bill of Rights in 1689. It was later adopted in the United States by the Eighth Amendment to the U.S. Constitution (ratified in 1791) and in the British Leeward Islands in 1798. The Eighth Amendment states:
> Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
This amendment prohibits the federal government from imposing unduly harsh penalties on criminal defendants, either as punishment for a crime or as the price for obtaining pretrial release. The precise definition of "cruel and unusual punishment" varies by jurisdiction, but it typically includes punishments that are arbitrary, unnecessary, or overly severe compared to the crime.
The concept of cruel and unusual punishment has been adopted and interpreted in various ways in different jurisdictions beyond the United States and the British Leeward Islands:
- Universal Declaration of Human Rights: Article 5 of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, includes similar wording: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."
- European Convention on Human Rights: Article 3 of the European Convention on Human Rights (1950) addresses the issue of cruel and unusual punishment.
- International Covenant on Civil and Political Rights: Article 7 of this covenant (1966) includes the right to be free from cruel and unusual punishment.
- Canadian Charter of Rights and Freedoms: Section 12 of this charter (1982) includes the right to be free from cruel and unusual punishment.
- Other Jurisdictional Examples: While not exhaustive, other jurisdictions have also grappled with the interpretation and application of cruel and unusual punishment:
- In India, Article 21 of the Constitution guarantees the right to life and personal liberty, and the Supreme Court has interpreted this to include the right to die with dignity, thus prohibiting cruel and unusual punishment.
- The European Court of Human Rights has found that solitary confinement can, in certain circumstances, violate Article 3 of the European Convention on Human Rights, constituting inhumane and degrading treatment.
- The Inter-American Court of Human Rights has held that life imprisonment without the possibility of parole can violate the American Convention on Human Rights, as it may constitute cruel, inhumane, or degrading punishment.
These examples demonstrate the evolving global recognition of the importance of protecting individuals from cruel and unusual punishment, with a focus on prohibiting torture, inhumane treatment, and arbitrary or disproportionate penalties.
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Frequently asked questions
Cruel and unusual punishment is a phrase in common law that describes punishment that is considered unacceptable due to the suffering, pain, or humiliation it inflicts on the person subjected to the sanction. The precise definition varies by jurisdiction, but typically includes punishments that are arbitrary, unnecessary, or overly severe compared to the crime.
The Supreme Court has ruled that the death penalty does not violate the Eighth Amendment's ban on cruel and unusual punishment. However, the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out. The legality of execution methods such as hanging, electrocution, and lethal injection has been upheld by the Supreme Court.
The Supreme Court has identified three main categories of cases where the death penalty constitutes cruel and unusual punishment: executing a defendant with intellectual disabilities, using the death penalty for crimes committed by minors, and using the death penalty for crimes other than murder. The Court has also ruled that the death penalty is unconstitutional if it is applied in a racially discriminatory manner or if it is imposed on the poor and innocent.
Many argue that capital punishment fails to advance any public good, that it is of a past era, and that it should be eliminated. Proponents of the death penalty argue that some people have committed such atrocious crimes that they deserve death, and that the death penalty may deter others from committing such crimes. They also point to the fact that the punishment is authorized in a majority of states and has broad support in public opinion polls.
