Eighth Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

At the end of the nineteenth century, the Supreme Court began to consider whether the standard for “cruel and unusual punishments” was fixed at the time of the framing of the Constitution or whether it was an evolving standard. In the 1878 case Wilkerson v. Utah and the 1890 case In re Kemmler, the Supreme Court weighed whether a punishment was “cruel and unusual” by examining whether the Framers would have considered the punishment or a sufficiently similar variant “cruel and unusual” in 1789.1 In Wilkerson, however, the Court appeared to suggest that this standard necessarily reflected current norms, noting that while “[d]ifficulty 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,” it was “safe to affirm that punishments of torture,” such as drawing and quartering, disemboweling alive, beheading, public dissection, and burning alive, are “forbidden by . . . [the] Constitution.” 2

In the twentieth century, the Court began to consider the “cruel and unusual” standard more flexibly, focusing on societal standards, especially as they implicated the “wanton infliction of pain.” 3 In 1910, in Weems v. United States,4 the Court reasoned that the Framers had not merely intended to bar reinstituting procedures and techniques deemed unacceptable in 1789, but had intended to prevent “a coercive cruelty being exercised through other forms of punishment.” The Weems Court viewed the Eighth Amendment to be of an “expansive and vital character.” 5 In the words of the plurality opinion in the 1958 decision, Trop v. Dulles, this meant that the amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” 6

In the context of capital punishment, the Court has generally viewed the Eighth Amendment to prohibit punishments that “involve the unnecessary and wanton infliction of pain.” 7 The Court has applied this standard to uphold the use of a firing squad8 and electrocution.9 In other cases, the Supreme Court held that various lethal injection protocols withstood scrutiny under the Eighth Amendment, finding that none of the challenged protocols presented a “substantial risk of serious harm” or an “objectively intolerable risk of harm.” 10

Footnotes

1

Wilkerson v. Utah, 99 U.S. 130 (1878); In re Kemmler, 136 U.S. 436 (1890); cf. Weems v. United States, 217 U.S. 349, 368–72 (1910). Chief Justice William Rehnquist subscribed to this view (see, e.g., Woodson v. North Carolina, 428 U.S. 280, 208 (1976) (dissenting)), and the views of Justices Antonin Scalia and Clarence Thomas appear to be similar. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 966–90 (1991) (Justice Antonin Scalia announcing judgment of Court) (relying on original understanding of Amendment and of English practice to argue that there is no proportionality principle in non-capital cases); and Hudson v. McMillian, 503 U.S. 1, 28 (1992) (Thomas, J., dissenting) (objecting to Court’s extension of the Amendment “beyond all bounds of history and precedent” in holding that “significant injury” need not be established for sadistic and malicious beating of shackled prisoner to constitute cruel and unusual punishment).

2

See Wilkerson, 99 U.S. at 135–36.

3

See Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion); see also Bucklew v. Precythe, No. 17-8151, slip op. at 11–12 (U.S. Apr. 1, 2019).

4

217 U.S. 349 (1910).

5

Id. at 376–77.

6

Trop v. Dulles, 356 U.S. 86, 100–01 (1958) (plurality opinion). This oft-quoted passage was later repeated, with the Court adding that cruel and unusual punishment “is judged not by the standards that prevailed in 1685 . . . or when the Bill of Rights was adopted, but rather by those that currently prevail.” Atkins v. Virginia, 536 U.S. 304, 311–12 (2002).

7

See Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion); see also Bucklew, No. 17-8151, slip op. at 11–12 (declaring that “the Eighth Amendment was understood to forbid . . . forms of punishment that intensified the sentence of death” by superadding “terror, pain, or disgrace” ) (internal citations and quotations omitted).

8

Wilkerson, 99 U.S. at 137–38.

9

See In re Kemmler, 136 U.S. 436, 447 (1890) ( “Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.” ); see also Louisiana ex. rel. Francis v. Resweber, 329 U.S. 459 (1947).

10

See Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality opinion) (upholding Kentucky’s use of a three-drug cocktail consisting of an anesthetic (sodium thiopental), a muscle relaxant, and an agent that induced cardiac arrest); see also Bucklew, No. 17-8151, slip op. at 22–25 (U.S. Apr. 1, 2019) (in an as-applied challenged, concluding that the petitioner’s claims that the State of Missouri’s execution protocol would result in severe pain rested on “speculation unsupported, if not affirmatively contradicted, by the evidence” before the lower court); Glossip v. Gross, 576 U.S. 863, 893 (2015) (upholding Oklahoma’s use of a three-drug cocktail that utilized a sedative called midazolam in lieu of sodium thiopental).