A key provision of the Eighth Amendment to the U.S. Constitution prohibiting the most shockingly barbarous punishments and conditions of incarceration.

Borrowing from the English Bill of Rights of 1688, the Framers of the U.S. Bill of Rights (1791) included in the Eighth Amendment to the U.S. Constitution a prohibition against “cruel and unusual punishment.” Like so much else in the Constitution, and particularly in the Bill of Rights, the meaning, scope, and limitations of these figurative words were left to be determined by the Supreme Court. The results have been inconsistent, conflicting, and enigmatic.Cruel and unusual punishmentEighth AmendmentEighth Amendment

The Court has struggled over whether the prohibition sets absolute and immutable standards that persist over time or instead expresses a goal of proportionality that varies depending on the circumstances. Consequently, the body of Court decisions interpreting the prohibition suffers from a lack of cohesion, allowing succeeding justices to fill the words with their own values and sensibilities.

During its first century, the Court paid scant attention to the prohibition on cruel and unusual punishment. In 1910 the Court held, in Weems v. United States[case]Weems v. United States[Weems v. United States], that the crime of being an accessory to the falsification of a public document could not justify a sentence of twelve to twenty years at hard labor in chains and a permanent deprivation of civil rights.

It was not until the 1970’s that the Court dwelt seriously on the prohibition, most prominently in the context of the death penalty. In Furman v. Georgia[case]Furman v. Georgia[Furman v. Georgia] (1972), a fractured Court, with all nine justices writing separate opinions, struck down capital punishmentCapital punishment with a 5-4 vote. Only Justices William J. Brennan, Jr., and Thurgood Marshall found that the death penalty was categorically unconstitutional based on the prohibition against cruel and unusual punishment, which the two justices construed as a flexible device reflecting “evolving standards of decency” based on public opinion, jury verdicts, and legislative enactments.

However, four years later in Gregg v. Georgia[case]Gregg v. Georgia[Gregg v. Georgia] (1976), a plurality of the Court found that the prohibition did not invariably preclude capital punishment but only prohibited torture, gratuitously painful methods of execution, or punishments not officially authorized by law.

In noncapital cases, the Court has sent mixed signals. In Rummel v. Estelle[case]Rummel v. Estelle[Rummel v. Estelle] (1980), a 5-4 majority held that sentencing a man to a life sentence for three felonies committed over nine years for crimes totaling $229.11 was not cruel and unusual. However, in Solem v. Helm[case]Solem v. Helm[Solem v. Helm] (1983), again on a 5-4 vote, the Court invalidated a life sentence for a man, with prior nonviolent felony convictions, found guilty of passing a hundred-dollar check on a nonexistent account.

Inevitably, the Court will continue to grapple with the dilemma of giving meaning to one of the most opaque provisions in the Bill of Rights.

Brennan, William J., Jr.

Capital punishment

Eighth Amendment

Furman v. Georgia

Gregg v. Georgia

Marshall, Thurgood

Rummel v. Estelle

Solem v. Helm

Weems v. United States