Alternatively, one could regard it as authorized by the laws of more than half of the death penalty states and therefore, even if cruel, certainly not unusual. Justice Brewer were of opinion that the question was presented, and Mr. Archived from on April 28, 2003. A more difficult possibility would be to assess unusualness as a function of typical punishments for the particular crime in question. Stinneford, Professor of Law and Assistant Director, Criminal Justice Center, University of Florida Levin College of Law. Traditionally, the length of a prison sentence was not subject to scrutiny under the Eighth Amendment, regardless of the crime for which the sentence was imposed. Surely the excessiveness of a fine is not to be measured in 1791 dollars.
Chris Sparry, Georgia's chief medical examiner, who has testified on the matter, stated: The best evidence that exists to indicate that people who are judicially executed never feel any conscious pain or suffering rests in the tens of thousands of people who have sustained accidental electrocutions and have survived. Wilson in the Pennsylvania convention. In other words, at the end of the day, whether society can be reasonably deemed to have turned away from a punishment is less important than whether the justices have. This stalemate by no means flows inexorably from some inherent defect in the amendment itself. The Court held that the sentence was significantly disproportionate to the defendant's crime and that it was thus prohibited by the Eighth Amendment. The first, which we have emphasized in our cases interpreting the Cruel and Unusual Punishments Clause, is that judgments about the appropriate punishment for an offense belong in the first instance to the legislature.
For progressives, the constitutionality of a particular punishment cannot be evaluated in the abstract. . The Court struck down the statute, stating, We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment…. Twelve years later, in In re Kemmler, 136 U. The court admitted no bottom-line error. The Supreme Court has interpreted the 8th Amendment to mean that bail can be denied if the charges are serious enough, or if it is reasonably believed that releasing the accused may pose a danger to the community. The state thereby suffers nothing and loses no power.
Cruel, certainly, but hanging was not unusual at the time the Bill of Rights was adopted. It would also make it very clear how many states would have to ban a constitutionally cruel punishment before disabling other states from practicing it. A more modern example is that life in prison for a third felony conviction certainly has more deterrent power than a lesser sentence enhancement. A sentence of life imprisonment without parole may be acceptable for some crimes, but it would violate the Constitution to condemn anyone to die in prison for shoplifting or simple marijuana possession. The same words of John Bingham had been quoted in Justice dissent in , 1947 ; Black and three other dissenting justices had unsuccessfully urged in Adamson that the Eighth Amendment and the rest of the Bill of Rights be applied against the states. There is not time or space here to answer all these questions, but the essays that follow will demonstrate differing ways of approaching several of them.
If the answer is truly none, as Scalia would have it, then the amendment is nothing more than a historical relic, not an active protection against any government action imaginable in this or any other contemporary democracy. What is in the concern is the fact that your son was arrested at different times for the same crime. For example, would it violate the Eighth Amendment to impose a life sentence for a parking violation? A person who can show that a jurisdiction is subjecting him to a cruel punishment it almost never deploys even for comparable offenses seems to me to have a strong claim for the unusualness of the cruelty directed at him. Georgia did not hold — even though it is sometimes claimed that it did — that capital punishment is unconstitutional. Yet executing a florid schizophrenic can still pass constitutional muster, provided that the condemned is aware of what is about to happen and why he is to suffer death. It condemns the sentence in this case as cruel and unusual. Cruelty might become an instrument of tyranny; of zeal for a purpose, either honest or sinister.
State of Georgia, 554 S. Livermore opposed the adoption of the clause saying: The clause seems to express a great deal of humanity, on which account I have no objection to it; but, as it seems to have no meaning in it, I do not think it necessary. Like many of the provisions of the U. But surely they intended more than to register a fear of the forms of abuse that went out of practice with the Stuarts. Matters of Debate Bryan A.
To take the juvenile death penalty case as an example, different iterations of the methodology I have outlined could produce radically different results. Supreme Court ruled on Weems v. Second, does the Cruel and Unusual Punishments Clause only prohibit barbaric methods of punishment, or does it also prohibit punishments that are disproportionate to the offense? Somehow, out of these transient developments, a supposed consensus is born. Nebraska and Alabama continue to use their electric chairs as the sole means of execution although both states have considered legislation to allow lethal injection as well. I do not intend this essay as a doctrinal treatise expounding on Eighth Amendment jurisprudence, but rather as a kind of sketch of how it went awry and of how it can now be righted. Understanding Criminal Law Fifth ed. The prisoner was handcuffed to a hitching post for 7 hours, taunted, and denied bathroom breaks.
This helps eliminate the imposition of fines that are arbitrary or excessive. Another Perspective This essay is part of a discussion about the Eighth Amendment with John F. It is conceivable, after all, that a punishment understood at one time to have a legitimate penal purpose has seen that purpose so eroded over time as to be rendered a simple act of cruelty; branding and the cutting off of ears come to mind. As to the method of punishment, the Eighth Amendment clearly bars punishments that were considered cruel at the time of its , such as burning at the stake, crucifixion, or breaking on the wheel see In re Kemmler, 136 U. In , 1947 , the Supreme Court assumed that the Cruel and Unusual Punishments Clause through the. However, just because a punishment is severe does not automatically make it unconstitutional. In response to the non-originalist approach to the Constitution, some judges and scholars — most prominently Justices Scalia and Thomas — have argued for a very narrow approach to original meaning that is almost willfully indifferent to current societal needs.