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The Cruel and Unusual Punishment Clause
Some punishments are forbidden entirely by the Cruel and Unusual Punishments Clause. In 1878, while upholding a sentence that a convicted murderer be “publicly shot” in Wilkerson v. Utah, the Supreme Court provided examples of punishment that would be cruel and unusual punishment for any crime:
- drawing and quartering
- public dissecting
- burning alive
- disemboweling
The Death Penalty as Cruel and Unusual
In 1972, the Supreme Court outlined a test to determine if the death penalty[1] is banned by the Eighth Amendment in Furman v. Georgia. The elements of the test are:
- The “essential predicate” is “that a punishment must not by its severity be degrading to human dignity,” especially torture.
- A severe punishment that is obviously inflicted in wholly arbitrary fashion.
- A severe punishment that is clearly and totally rejected throughout society.
- A severe punishment that is patently unnecessary.
The Court found that sentences of death were being imposed in an arbitrary fashion, and that the discretion and lack of direction to given to judges and juries was resulting in some similarly situated defendants receiving death sentences while others did not. The Court determined this was “cruel and unusual”. As a result, no executions took place over the next four years while states revised their capital punishment laws. Many of the revised laws provided for separate trials as to a defendant’s guilt and a second “trial” regarding the appropriate penalty. The Supreme Court found such laws were not arbitrary in the 1976 case of Gregg v. Georgia and executions resumed.
On January 17, 1977, convicted murderer Gary Gilmore told a Utah firing squad, “Let’s do it.” and became the first prisoner executed under the new death penalty laws.
Court Employs “Evolving Standards of Decency” To Limit Death Penalty
Though the death penalty is recognized in the Constitution and is not “cruel and unusual” generally in the Eighth Amendment sense, the Supreme Court has found that it offends the constitution in certain circumstances. In 1977, the Court found death was an inappropriate punishment for the crime of rape. In 1982, the Court found the death penalty unconstitutional when applied to someone convicted of “felony murder”.[2] In 2002, the Supreme Court determined that the execution of a mentally handicapped defendant was cruel and unusual. In 2005, the Supreme Court determined that the execution of a person who was younger than 18 at the time the crime was committed was cruel and unusual.
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