Cruel and Unusual Punishment

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” -8th Amendment United States Constitution

The

th 8

Amendment

 The 8th Amendment was adopted, as part of the Bill of Rights in 1791.  It is almost identical to a provision in the English Bill of Rights of 1689, in which Parliament declared, "as their ancestors in like cases have usually done...that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Cruel and Unusual Punishments  According to the Supreme Court, the 8th 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.

Louisiana ex rel. Francis v. Resweber (1947)  The Supreme Court assumed that the Cruel and

Unusual Punishments Clause applied to the states through the Due Process Clause of the Fourteenth Amendment.

Punishments Forbidden Regardless of the Crime  In Wilkerson v. Utah (1878), the Supreme Court

commented that drawing and quartering, public dissecting, burning alive, or disemboweling would constitute cruel and unusual punishment regardless of the crime.  In Skinner v Oklahoma (1942) the Supreme Court ruled that forced sterilization for crimes was unconstitutional – continued until the 1960s for the mentally ill

Trop v. Dulles (1958)  Justices held that it was cruel and unusual

punishment to make loss of citizenship the penalty for desertion.  The meaning of the 8th amendment could be discerned from evolving standards of decency.

Evolution of Decency  "The [Eighth] Amendment must draw its meaning from the

evolving standards of decency that mark the progress of a maturing society.“  Subsequently, the Court has looked to societal developments, as well as looking to its own independent judgment, in determining what are those "evolving standards of decency”.  Over time, our definition of decency has changed.  The Court has then applied those standards not only to say what punishments are inherently cruel, but also to say what punishments that are not inherently cruel are nevertheless cruelly disproportionate to the offense in question.

Juveniles and life sentences  Graham v Florida (2010) The Supreme Court ruled that

juveniles cannot receive true life sentences without the possibility of parole for crimes that are not homicide  The majority decision noted that almost no countries have true life sentences for juveniles and few states have juveniles in jail indefinitely

Proportionality  In Rummel v. Estelle (1980), the Court upheld a life sentence

with the possibility of parole for fraud crimes totaling $230.  In Harmelin v. Michigan (1991), the Court upheld a life sentence without the possibility of parole for possession of 672 grams of cocaine.  In Lockyer v. Andrade (2003), the Court upheld a 50 years to life sentence with the possibility of parole imposed under California's three strikes law when the defendant was convicted of shoplifting videotapes worth a total of about $150.

Death Penalty  The provision of the 8th Amendment provides a major

constitutional source for challenging the death penalty.  The death penalty can only be issued by a jury, not a judge or attorney.  “Death is different”

Death penalty  Furman v Georgia (1972) – Death penalty is

unconstitutional if it is inconsistently enforced  Gregg V. Georgia (1976) Reinstituted the death penalty for murder if carefully employed.  1) bifurcated proceeding where the trial and sentencing are conducted separately  2)specific jury findings as to the severity of the crime and the nature of the defendant

Death Penalty for Rape  In Coker v. Georgia (1977), the Court declared that the

death penalty was unconstitutionally excessive for rape and, by implication, for any crime where a death does not occur.  In Kennedy v Louisiana (2008) The Court extended the reasoning of Coker by ruling that the death penalty was excessive for child rape "where the victim’s life was not taken.“

Death penalty limitations  The Supreme Court declared executing the mentally

handicapped as unconstitutional in Atkins v. Virginia (2002)  Executing people who were under age 18 at the time the crime was committed was ruled unconstitutional in Roper v. Simmons (2005)

In Oregon and in the USA today

Oregon  Legal in Oregon  outlawed between 1914 and 1920, again between 1964

and 1978, and then again between a 1981 Oregon Supreme Court ruling and a 1984 ballot measure  Since 1904, about 60 individuals have been executed in Oregon  Thirty-two people are on Oregon's death row as of 1 July 2009  Last person killed way in 1997, after he dropped all appeals  Death by lethal injection

Lethal injection  Kills the person by first

putting the person to sleep, then stopping the breathing and heart in that order  Supporters argue that the method less painful and more efficient  Supreme Court has upheld the method in 2009

USA – Lethal Injection

USA – Other forms Gas Chamber

Firing Squad

Electric Chair

USA - Numbers  About 13,000 put to death since colonial times  Texas holds the record for the largest number of

executions since the death penalty was reinstated in 1976 – 456 Since 1982  Virginia has executed a larger percentage of its population than any other state over 1 million in population.  88% of the world’s executions (killing 1,252) in 2007 were done in China, Iran, Pakistan, Saudi Arabia, and the United States.  All of Europe has banned the death penalty