Prohibition on the Infliction of Cruel and Unusual Punishments: Doctrine and Practice

Eighth Amendment:

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

At first, the Court was inclined to an historical style of interpretation, determining whether a punishment was “cruel and unusual” by looking to see if it or a sufficiently similar variant had been considered “cruel and unusual” in 1789.1 In Weems v. United States,2 however, the Court concluded that the framers had not merely intended to bar the reinstitution of procedures and techniques condemned in 1789, but had intended to prevent the authorization of “a coercive cruelty being exercised through other forms of punishment.” The Amendment therefore was of an “expansive and vital character” 3 and, in the words of a later Court, “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” 4 The proper approach to an interpretation of this provision has been one of the major points of difference among the Justices in the capital punishment cases.5

Well over a century ago, the Court began defining limits on the scope of criminal punishments allowed under the Eighth Amendment, 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 is 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.” 6 Nonetheless, in the context of capital punishment, the Court has upheld the use of a firing squad7 and electrocution,8 generally viewing the Eighth Amendment to prohibit punishments that “involve the unnecessary and wanton infliction of pain.” 9 In three more cases, the Supreme Court held that the 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 (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, slip op. at 23 (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, 135 S. Ct. 2726, 2746 (2015) (upholding Oklahoma’s use of a three-drug cocktail that utilized a sedative called midazolam in lieu of sodium thiopental).

Divestiture of the citizenship of a natural born citizen was held to be cruel and unusual punishment in Trop v. Dulles.11 The Court viewed divestiture as a penalty more cruel and “more primitive than torture,” because 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.” 12

Proportionality

In O’Neil v. Vermont,13 Justice Field argued in dissent that, in addition to prohibiting punishments deemed barbarous and inhumane, the Eighth Amendment also condemned “all punishments which by their excessive length or severity are greatly disproportionate to the offenses charged.” In Weems v. United States,14 the Court adopted this view in striking down a sentence in the Philippine Islands of 15 years incarceration at hard labor with chains on the ankles, loss of all civil rights, and perpetual surveillance, for the offense of falsifying public documents. The Court compared the sentence with those meted out for other offenses and concluded: “This contrast shows more than different exercises of legislative judgment. It is greater than that. It condemns the sentence in this case as cruel and unusual. It exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice.” 15 Punishments as well as fines, therefore, can be condemned as excessive.16

The Court has gone back and forth in its acceptance of proportionality analysis in non-capital cases. It appeared that such analysis had been closely cabined in Rummel v. Estelle,17 upholding a mandatory life sentence under a recidivist statute following a third felony conviction, even though the defendant’s three nonviolent felonies had netted him a total of less than $230. The Court reasoned that the unique quality of the death penalty rendered capital cases of limited value, and distinguished Weems on the ground that the length of the sentence was of considerably less concern to the Court than were the brutal prison conditions and the post-release denial of significant rights imposed under the peculiar Philippine penal code. Thus, in order to avoid improper judicial interference with state penal systems, Eighth Amendment judgments must be informed by objective factors to the maximum extent possible. But when the challenge to punishment goes to the length rather than the seriousness of the offense, the choice is necessarily subjective. Therefore, the Rummel rule appeared to be that states may punish any behavior properly classified as a felony with any length of imprisonment purely as a matter legislative grace.18 The Court dismissed as unavailing the factors relied on by the defendant. First, the fact that the nature of the offense was nonviolent was found not necessarily relevant to the seriousness of a crime, and the determination of what is a “small” amount of money, being so subjective, was a legislative task. In any event, the state could focus on recidivism, not the specific acts. Second, the comparison of punishment imposed for the same offenses in other jurisdictions was found unhelpful, differences and similarities being more subtle than gross, and in any case in a federal system one jurisdiction would always be more severe than the rest. Third, the comparison of punishment imposed for other offenses in the same state ignored the recidivism aspect.19

Rummel was distinguished in Solem v. Helm,20 the Court stating unequivocally that the Cruel and Unusual Punishments Clause “prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed,” and that “[t]here is no basis for the State’s assertion that the general principle of proportionality does not apply to felony prison sentences.” 21 Helm, like Rummel, had been sentenced under a recidivist statute following conviction for a nonviolent felony involving a small amount of money.22 The difference was that Helm’s sentence of life imprisonment without possibility of parole was viewed as “far more severe than the life sentence we considered in Rummel v. Estelle.” 23 Rummel, the Court pointed out, “was likely to have been eligible for parole within 12 years of his initial confinement,” whereas Helm had only the possibility of executive clemency, characterized by the Court as “nothing more than a hope for ‘an ad hoc exercise of clemency.’” 24 The Solem Court also spelled out the “objective criteria” by which proportionality issues should be judged: “(I) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” 25 Measured by these criteria, Helm’s sentence was cruel and unusual. His crime was relatively minor, yet life imprisonment without possibility for parole was the harshest penalty possible in South Dakota, reserved for such other offenses as murder, manslaughter, kidnaping, and arson. In only one other state could he have received so harsh a sentence, and in no other state was it mandated.26

The Court remained closely divided in holding in Harmelin v. Michigan27 that a mandatory term of life imprisonment without possibility of parole was not cruel and unusual as applied to the crime of possession of more than 650 grams of cocaine. There was an opinion of the Court only on the issue of the mandatory nature of the penalty, the Court rejecting an argument that sentencers in non-capital cases must be allowed to hear mitigating evidence.28 As to the length of sentence, three majority Justices—Kennedy, O’Connor, and Souter—would recognize a narrow proportionality principle, but considered Harmelin’s crime severe and by no means grossly disproportionate to the penalty imposed.29

Twelve years after Harmelin the Court still could not reach a consensus on rationale for rejecting a proportionality challenge to California’s “three-strikes” law, as applied to sentence a repeat felon to 25 years to life imprisonment for stealing three golf clubs valued at $399 apiece.30 A plurality of three Justices (O’Connor, Kennedy, and Chief Justice Rehnquist) determined that the sentence was “justified by the State’s public safety interest in incapacitating and deterring recidivist felons, and amply supported by [the petitioner’s] long, serious criminal record,” and hence was not the “rare case” of “gross disproportional[ity].” 31 The other two Justices voting in the majority were Justice Scalia, who objected that the proportionality principle cannot be intelligently applied when the penological goal is incapacitation rather than retribution,32 and Justice Thomas, who asserted that the Cruel and Unusual Punishments Clause “contains no proportionality principle.” 33 Not surprisingly, the Court also rejected a habeas corpus challenge to California’s “three-strikes” law for failure to clear the statutory hurdle of establishing that the sentencing was contrary to, or an unreasonable application of, “clearly established federal law.” 34 Justice O’Connor’s opinion for a five-Justice majority explained, in understatement, that the Court’s precedents in the area “have not been a model of clarity . . . that have established a clear or consistent path for courts to follow.” 35

Declaring that “[t]he concept of proportionality is central to the Eighth Amendment,” Justice Kennedy, writing for a five-Justice majority in Graham v. Florida,36 held that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” 37 Justice Kennedy characterized proportionality cases as falling within two general types. The first type comprises challenges to the length of actual sentences imposed as being grossly disproportionate, and such challenges are resolved under approaches taken in Solem, Harmelin, and similar cases. The second type comprises challenges to particular sentencing practices as being categorically impermissible, but categorical restrictions had theretofore been limited to imposing the death penalty on those with diminished capacity. In Graham, Justice Kennedy broke new ground and recognized a categorical restriction on life without parole for nonhomicide offenses by juveniles, citing considerations and applying analysis similar to those used in his juvenile capital punishment opinion in Roper.38 . Concurring in the judgement in Graham, Chief Justice Roberts resolved the case under a proportionality test, finding the majority's categorical restriction to be unwise and unnecessary in Graham's circumstances. Graham, 560 U.S. 48 (Roberts, C.J., concurring). In considering objective indicia of a national consensus on the sentence, the Graham opinion looked beyond statutory authorization — thirty-seven states and the District of Columbia permitted life without parole for some juvenile nonhomicide offenders — to actual imposition, which was rare outside Florida. Justice Kennedy also found support “in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over.” 39 After finding that a consensus had developed against the sentencing practice at issue, Justice Kennedy expressed an independent judgment that imposing life without parole on juveniles for nonhomicide offenses failed to serve legitimate penological goals adequately.40 Factors in reaching this conclusion included the severity of the sentence, the relative culpability of juveniles, and the prospect for their rehabilitation.41

The concept of proportionality also drove Justice Kagan's analysis in Miller v. Alabama, a case questioning the imposition of mandatory life imprisonment without parole on juveniles convicted of homicide.42 Her analysis began by recounting the factors, stated in Roper and Graham, that mark children as constitutionally different from adults for purposes of sentencing: Children have diminished capacities and greater prospects for reform.43 Nevertheless, these factors, even when coupled with the severity of a life without parole sentence, did not lead Justice Kagan to bar life without parole for juveniles in homicide cases categorically.44 Her more immediate concern was that the mandatory life sentences in Miller left no room for a sentencer to consider a juvenile offender's special immaturity, vulnerability, suggestibility, and the like.45 In Justice Kagan's view, a process that mandates life imprisonment without parole for juvenile offenders is constitutionally flawed because it forecloses any consideration of the hallmark distinctions of youth in meting out society's severest penalties.46

Limitation of the Clause to Criminal Punishments

The Eighth Amendment deals only with criminal punishment, and has no application to civil processes. In holding the Amendment inapplicable to the infliction of corporal punishment upon schoolchildren for disciplinary purposes, the Court explained that the Cruel and Unusual Punishments Clause “circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes; second, it proscribes punishment grossly disproportionate to the severity of the crime; and third, it imposes substantive limits on what can be made criminal and punished as such.” 47 These limitations, the Court thought, should not be extended outside the criminal process.

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 Rehnquist subscribed to this view (See, e.g., Woodson v. North Carolina, 428 U.S. 280, 208 (1976) (dissenting)), and the views of Justices Scalia and Thomas appear to be similar. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 966–90 (1991) (Justice 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) (Justice Thomas 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

217 U.S. 349 (1910).

3

Id. at 376–77.

4

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).

5

See Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause, 126 U. Pa. L. Rev. 989 (1978).

6

See Wilkerson, 99 U.S. at 135–36.

7

Id. at 137–38.

8

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).

9

See Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion); see also Bucklew v. Precythe, No. 17–8151, slip op. at 10–12 (U.S. Apr. 1, 2019) (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).

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, slip op. at 23 (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, 135 S. Ct. 2726, 2746 (2015) (upholding Oklahoma’s use of a three-drug cocktail that utilized a sedative called midazolam in lieu of sodium thiopental).

11

Id.. 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.

12

Id. 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, 536 U.S. 730, 738 (2002).

13

144 U.S. 323, 339–40 (1892). See also Howard v. Fleming, 191 U.S. 126, 135–36 (1903).

14

217 U.S. 349 (1910). The Court was here applying not the Eighth Amendment but a statutory bill of rights applying to the Philippines, which it interpreted as having the same meaning. Id. at 367.

15

Id. at 381.

16

“The Eighth Amendment succinctly prohibits ‘excessive’ sanctions.” Atkins v. Virginia, 536 U.S. 304, 311 (2002) (applying proportionality review to determine whether execution of persons with intellectual disabilities is cruel and unusual). Proportionality in the context of capital punishment is considered under “Limitations on Capital Punishment: Proportionality,” supra.

17

445 U.S. 263 (1980).

18

In Hutto v. Davis, 454 U.S. 370 (1982), on the authority of Rummel, the Court summarily reversed a decision holding disproportionate a prison term of 40 years and a fine of $20,000 for defendant’s possession and distribution of approximately nine ounces of marijuana said to have a street value of about $200.

19

Rummel, 445 U.S. at 275–82. The dissent deemed these three factors to be sufficiently objective to apply and thought they demonstrated the invalidity of the sentence imposed. Id. at 285, 295–303.

20

463 U.S. 277 (1983). The case, like Rummel, was decided by a 5-4 vote.

21

Id. at 288.

22

The final conviction was for uttering a no-account check in the amount of $100; previous felony convictions were also for nonviolent crimes described by the Court as “relatively minor.” Id. at 296–97.

23

Id. at 297.

24

Id. at 303.

25

Id. at 292.

26

For a suggestion that Eighth Amendment proportionality analysis may limit the severity of punishment possible for prohibited private and consensual homosexual conduct, see Justice Powell’s concurring opinion in Bowers v. Hardwick, 478 U.S. 186, 197 (1986).

27

501 U.S. 957 (1991).

28

“Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense.” Id. at 994. The Court’s opinion, written by Justice Scalia, then elaborated an understanding of “unusual” —set forth elsewhere in a part of his opinion subscribed to only by Chief Justice Rehnquist—that denies the possibility of proportionality review altogether. Mandatory penalties are not unusual in the constitutional sense because they have “been employed in various form throughout our Nation’s history.” This is an application of Justice Scalia’s belief that cruelty and unusualness are to be determined solely by reference to the punishment at issue, and without reference to the crime for which it is imposed. See id. at 975–78 (not opinion of Court—only Chief Justice Rehnquist joined this portion of the opinion). Because a majority of other Justices indicated in the same case that they do recognize at least a narrow proportionality principle (see id. at 996 (Justices Kennedy, O’Connor, and Souter concurring); id. at 1009 (Justices White, Blackmun, and Stevens dissenting); id. at 1027 (Justice Marshall dissenting)), the fact that three of those Justices (Kennedy, O’Connor, and Souter) joined Justice Scalia’s opinion on mandatory penalties should probably not be read as representing agreement with Justice Scalia’s general approach to proportionality.

29

Because of the “serious nature” of the crime, the three-Justice plurality asserted that there was no need to apply the other Solem factors comparing the sentence to sentences imposed for other crimes in Michigan, and to sentences imposed for the same crime in other jurisdictions. Id. at 1004. Dissenting Justice White, joined by Justices Blackmun and Stevens (Justice Marshall also expressed agreement on this and most other points, id. at 1027), asserted that Justice Kennedy’s approach would “eviscerate” Solem. Id. at 1018.

30

Ewing v. California, 538 U.S. 11 (2003).

31

Id. at 29–30.

32

Id. at 31.

33

Id. at 32. The four dissenting Justices thought that the sentence was invalid under the Harmelin test used by the plurality, although they suggested that the Solem v. Helm test would have been more appropriate for a recidivism case. See Id. at 32, n.1 (opinion of Justice Stevens).

34

Lockyer v. Andrade, 538 U.S. 63 (2003). The three-strikes law had been used to impose two consecutive 25-year-to-life sentences on a 37-year-old convicted of two petty thefts with a prior conviction.

35

Ewing, 538 U.S. at 72.

36

560 U.S. 48 (2010).

37

Id. at 82. The opinion distinguishes life without parole from a life sentence. An offender need not be guaranteed eventual release under the Graham holding, just a realistic opportunity for release based on conduct during confinement.

38

See 543 U.S. 551 (2005). Concurring in the judgement in Graham, Chief Justice Roberts resolved the case under a proportionality test, finding the majority's categorical restriction to be unwise and unnecessary in Graham's circumstances. Graham, 560 U.S. 48 (Roberts, C.J., concurring).

39

Graham, 560 U.S. at 80.

40

For a parallel discussion in Roper, see Roper, 543 U.S. at 568–75.

41

In dissent, Justice Thomas, joined by Justice Scalia and, in part, by Justice Alito, questioned both the basis and the reach of the majority opinion. In addition to strongly objecting to adopting any categorical rule in a nonhomicide context, Justice Thomas pointedly criticized the conclusion that the legislative and judicial records established a consensus against imposing life without parole on juvenile offenders in nonhomicide cases. He also disparaged the majority's independent judgment on the morality and justice of the sentence as wrongfully pre-empting the political process. Graham, 560 U.S. 48 (Thomas, J., dissenting).

42

567 U.S. 460 (2012).

43

Id. at 471.

44

Id. at 482–83.

45

Id. at 477–78.

46

Id. at 471. In Montgomery v. Louisiana, the Court cautioned, however, that Miller should not be read as merely imposing additional procedural hurdles before a juvenile offender could be sentenced to life without parole. See 577 U.S. 190, 206–08 (2016). Instead, according to the Montgomery Court, Miller barred a sentence of life without parole for “all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Id. at 209.

47

Ingraham v. Wright, 430 U.S. 651, 667 (1977) (citations omitted). Constitutional restraint on school discipline, the Court ruled, is to be found in the Due Process Clause, if at all.