"Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture [such as drawing and quartering, embowelling alive, beheading, public dissecting, and burning alive], and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution."50
In upholding capital punishment inflicted by a firing squad, the Court not only looked to traditional practices but examined the history of executions in the territory concerned, the military practice, and current writings on the death penalty.51 Relying on the Fourteenth Amendment's Due Process Clause rather than the Eighth Amendment, the Court next approved electrocution as a permissible method of administering punishment.52 Many years later, a divided Court, assuming the applicability of the Eighth Amendment to the States, held that a second electrocution following a mechanical failure at the first which injured but did not kill the condemned man did not violate the proscription.53
In Baze v. Rees,1 a Court plurality upheld capital punish- ment by a three-drug lethal injection protocol, despite the risk that the protocol will not be properly followed and that severe pain will result. The plurality found that, although “subjecting individuals to a risk of future harm — not simply actually inflicting pain — can qualify as cruel and unusual punishment . . . , the conditions presenting the risk must be ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ . . . [T]o prevail on such a claim there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.’”2 The presence of an “unnecessary” or “untoward” risk of harm that can be eliminated by adopting alternative procedures, the plurality found, is insufficient to render the three-drug protocol unconstitutional. Instead, for the protocol to be unconstitutional, an “alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.”3
Divestiture of the citizenship of a natural born citizen was held to be cruel and unusual punishment in Trop v. Dulles.54 The Court viewed divestiture as a penalty more cruel and "more primitive than torture," inasmuch as it entailed statelessness or "the total destruction of the individual's status in organized society." "The question is whether [a] penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment." A punishment must be examined "in light of the basic prohibition against inhuman treatment," and the Amendment was intended to preserve the "basic concept . . . [of] the dignity of man" by assuring that the power to impose punishment is "exercised within the limits of civilized standards."55
50 Wilkerson v. Utah, 99 U.S. 130, 135 (1878).
51 Hanging was the other method of execution commonly used at the time, and implicitly approved by the Court.
52 In re Kemmler, 136 U.S. 436 (1890).
53 Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947). Justice Frankfurter tested the issue by due process standards. Id. at 470 (concurring). Years earlier the Court, although recognizing that the Eight Amendment was then inapplicable to the states, opined in dictum that a fine and brief imprisonment for illegal sale of alcohol was not cruel and unusual punishment. Pervear v. Commonwealth, 72 U.S. (5 Wall.) 475, 479-80 (1867).
1 128 S. Ct. 1520 (2008).
2 128 S. Ct. at 1530-31. The plurality opinion was written by Chief Justice Roberts and joined by Justices Kennedy and Alito. There were five concurring opinions (one of them by Justice Alito) and a dissenting opinion by Justice Ginsburg, joined by Justice Souter.
3 128 S. Ct. at 1532. Justice Thomas, joined by Justice Scalia, would have found that “a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain.” Id. at 1556. Justice Ginsburg, joined by Justice Souter in dissent, would have found that a method of execution violates the Eighth Amendment if it “poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.” Id. at 1567. Justice Breyer agreed with the Eighth Amendment standard that Justice Ginsburg would have applied, but he concurred with the plurality because he could not find sufficient evidence that the three-drug protocol violated that standard. Id. at 1563. Thus, while Justices Scalia and Thomas’ standard would result in Eighth Amendment violations in fewer situations than the plurality’s would, Justices Ginsburg, Souter, and Breyer’s standard would result in violations in more situations than the plurality’s would. Justice Stevens remained neutral as to the appropriate standard. Although concluding that capital punishment itself violates the Eighth Amendment, he found that, under existing precedents, “whether as interpreted by the Chief Justice or Justice Ginsburg,” the petitioners failed to prove that the protocol violated the Eighth Amendment. Id. at 1552.
54 356 U.S. 86 (1958). Again the Court was divided. Four Justices joined the plurality opinion while Justice Brennan concurred on the ground that the requisite relation between the severity of the penalty and legitimate purpose under the war power was not apparent. Id. at 114. Four Justices dissented, denying that denationalization was a punishment and arguing that instead it was merely a means by which Congress regulated discipline in the armed forces. Id. at 121, 124-27.
55 356 U.S. at 99-100. The action of prison guards in handcuffing a prisoner to a hitching post for long periods of time violated basic human dignity and constituted "gratuitous infliction of 'wanton and unnecessary pain"' prohibited by the Clause. Hope v. Pelzer, 122 S. Ct. 2508, 2515 (2002).
Last modified: June 9, 2014