What is cruel and unusual punishment?

December 15, 2005 5:51 AM

What constitutes cruel and unusual punishment?

I just read the thread about Tookie Williams and the wikipedia article on cruel and unusual punishment, and I now have more questions than answers. Why wouldn't having to clean up litter while wearing an "I'm a drunk driver" sign be considered both cruel and unusual? Is it acceptable for a punishment to be cruel or unusual? Shouldn't the fact that (as best as I can tell), Article 3, Section 3 of the Constitution implies that Congress can pass the death penalty for treason imply that capital punishment was not, in principle, considered cruel and unusual by the founding fathers? If so, does that have any implications for capital punishment today?

(Note that while I'm a US citizen, I'm willing to hear arguments/definitions from other cultures, too.)

posted by kimota to law & government (18 comments total)

Defining cruel and unusual punishment is no longer up to the framers. It's what the Bush administration decides it is. While you're outraged why don't you take a look at what they've done to what used to be the 4th and 6th amendment. We are heading toward dark days my friend. The US is quickly becoming a failed experiment. It's proof that man will not trade security for freedom.
posted by any major dude at 6:42 AM on December 15, 2005

The whole concept of cruel and unusual punishment is about as nonsensical as it gets. By the very definition of punishment, all punishment is cruel and unusual, because, well, if it isn't, then it isn't punishment!

To see how stupid this whole "cruel and unusual" argument is, consider the most basic of punishments - prison. Most people would argue that locking a person in a cell with only the bare necessities cruel. The unusual part is probably moot based upon the fact that we all accept confinement as a common punishment.

Anyway, like all laws in the US, they're not really laws, but guidelines subject to interpretation. If you doubt that, consider the leeway your local district attorney has in applying the law. For example, how many murders in our society are plea bargained away?

Justice for sale. That's the name of the game here.

Not that I'm bitter or anything.
posted by kungfujoe at 6:44 AM on December 15, 2005

Findlaw has an excellent annotated constitution; the section on the Eighth Amendment discusses how courts have interpreted this provision through the years, including quite a bit on how it affects captial punishment.

On preview: despite any major dude's preference for making political points over actually answering the question, his first sentence, at least is correct. From the Findlaw annotations:

At first, the Court was inclined to an historical style on interpretation, determining whether or not a punishment was 'cruel and unusual' by looking to see if it or a sufficiently similar variant was considered 'cruel and unusual' in 1789. But in Weems v. United States it was 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' 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.'

posted by DevilsAdvocate at 6:47 AM on December 15, 2005

Wikipedia article.

FindLaw page with annotations.
posted by kirkaracha at 6:51 AM on December 15, 2005

By the very definition of punishment, all punishment is cruel and unusual, because, well, if it isn't, then it isn't punishment!

I strongly disagree. You may punish a child who stole something to do yard work for a couple of days. This would be a just punishment and hardly 'cruel'. Making the kid parade naked in front of their friends.. that's cruel. Punishment is not cruel or unusual by default. Indeed, many punishments will benefit the wrongdoer in all.
posted by wackybrit at 7:31 AM on December 15, 2005

Cruel and unusual punishment likely meant something very real to 18th-century educated men, during whose lifetimes drawing and quartering and other awful means of execution most certainly occurred. Remember that the French revolutionaries, their contemporaries, argued for the guillotine both as an equitable and as a humane form of execution. Torture was quite routine in the early part of the century, and punishments were often out of proportion to the crime as a form of exemplary punishment, i.e., they didn't have the resources to police most offences, but if they did catch you, they made an example of you. (I did some research on 18th-century French law and punishment for an undergrad seminar, but that was 12+ years ago and I'm reciting from memory.)
posted by mcwetboy at 7:51 AM on December 15, 2005

Related to the Tookie thing, I think that lethal injections themselves are sham. They use very short-acting anaesthetics to set the victim into an appearance of immobilized placidity. But the real death is calculated to be through agonizing asphyxiation, due to the involuntary cessastion of diaphragm movement. Thus the victim will feel an increasing sensation of suffocation. You might as well just hold a plastic bag over their face - or strangle them.

If you believe in capital punishment as a just sentence for crime and you are not movitated by feelings of revenge and a desire to wreak physical torture on the victim of the sentence, then, realistically, either lethal injection of a narcotic or something rapid like the guillotine or a well-executed hanging is the most humane solution (and were the preferred methods of "modernists" in that period). The injection thing easily qualifies as cruel and inhumane and is a modern innovation in sanitised sadism, first pioneered by Karl Brandt.
posted by meehawl at 7:53 AM on December 15, 2005

(By the above I mean that such punishments occurred, but not necessarily in the U.S. or Britain. I suspect that educated colonists would likely know what was going on in pre-revolutionary France, though.)
posted by mcwetboy at 7:54 AM on December 15, 2005

Somewhat related: a good post from about a week ago from SCOTUSblog on a death penalty case the Supreme Court heard. The post doesn't directly discuss the "cruel and unusual punishment" aspect very much, though I infer that it underlies the specifics discussed there.
posted by DevilsAdvocate at 9:44 AM on December 15, 2005

Also, remember that it's not "cruel or unusual", it's "cruel and unusual".
posted by null terminated at 10:33 AM on December 15, 2005

If you believe in capital punishment as a just sentence for crime and you are not movitated by feelings of revenge and a desire to wreak physical torture on the victim of the sentence, then, realistically, either lethal injection of a narcotic or something rapid like the guillotine or a well-executed hanging is the most humane solution (and were the preferred methods of "modernists" in that period). The injection thing easily qualifies as cruel and inhumane and is a modern innovation in sanitised sadism, first pioneered by Karl Brandt.
posted by meehawl at 7:53 AM PST on December 15 [!]

Wouldn't a true anesthetic, followed by any means (including injection) be humane? I mean, hanging's gotta hurt for a while before you die, no?
posted by jikel_morten at 10:42 AM on December 15, 2005

hanging's gotta hurt for a while before you die, no?
If done properly, it should be instantaneous. If done properly...
posted by Thorzdad at 1:33 PM on December 15, 2005

kungfujoe: Most people would argue that locking a person in a cell with only the bare necessities [is] cruel.

But less cruel than, say, amputating a hand.
posted by ryanrs at 2:50 PM on December 15, 2005

hanging's gotta hurt for a while before you die, no

As Thorzdad points out, if done correctly, hanging by the "long drop" method of William Marwood is virtually instantaneous. Amateur hangings, of course, tend to rely more on slow asphyxia. Only the English Kingdom, really, deprioritised hanging in favour of being "hung, drawn, and quartered", where you were first hung until almost dead, then taken down and emasculated and then disembowelled with some precision, being kept alive so you could watch your genitals and entrails burned before you. When it was over you were then beheaded and your torso ripped into four parts for public display. That is what, I suspect, people in the colonies revolting against English rule considered "cruel and unusual punishment".

I think it was the observation that simple and frequent miscalculations of the weight and drop length in a hanging resulted in messy decapitations that inspired Guillotin to propose what became the "scientific" Guillotine method of execution.

Ironically, considering that Guillotin was opposed to capital punishment, the creation of an easier, quicker, and more "humane" execution method probably did more to facilitate the expansion of The Terror executions than anything else.
posted by meehawl at 4:23 PM on December 15, 2005

Wouldn't a true anesthetic, followed by any means (including injection) be humane? I mean, hanging's gotta hurt for a while before you die, no?

It's not an anesthetic, it's a muscle relaxer that paralyzes you.
posted by delmoi at 6:27 PM on December 15, 2005

Almost all the public record, in recent years, of the "cruel and unusual" clause has to do with the death penalty. Harmelin v. Michigan -- a 1991 case which established that it really must be both cruel and unusual to be unconstitutional -- contains a great discussion of the 17th century view of the phrase, which derived from Parliamentary assertions of Englishmen's rights against the King.

Why wouldn't having to clean up litter while wearing an "I'm a drunk driver" sign be considered both cruel and unusual? Is it acceptable for a punishment to be cruel or unusual?

It does appear that it must be cruel and unusual, as noted above. Cruelty must be seen as creating a sense of horror or pain, though -- simply being humiliated isn't prohibited by itself.

"Hard labor" was phased out beginning around a hundred years ago as a type of involuntary servitude, and ancient punishments such as the stocks, the pillory, and the whipping post disappeared around that time as well. Even so, such punishments continue in some cases and resurface sporadically, such as the work crews resenting being shackled. In 2002's Hope v. Pelzer, the Supreme Court ruled that being chained to a hitching post in the sun was a violation.

In any event, the DWI wearing a shirt is probably not being punished -- he's probably doing that as terms of probation or parole, which are all but inviolably flexible. That is, they are not punishment per se, but substitutes for punishment, and the parolee is understood to be doing this in exchange for freedom. A judge retains great leniency -- separation of powers, etc. -- to impose whatever restrictions he wants on someone given probation.
posted by dhartung at 3:19 AM on December 16, 2005

It's not an anesthetic, it's a muscle relaxer that paralyzes you.
posted by delmoi at 6:27 PM PST on December 15 [!]

What I'm saying is that I don't understand where the 'it's hard to kill someone painlessly' thing comes from, given the ability we have to properly anesthetize someone as we do before surgery. What about carbon monoxide?
BTW, I'm anti cap pun, and am just playing devil's advocate in this case.
posted by jikel_morten at 8:39 AM on December 16, 2005

if you want really "cruel & unusual", read the opening of Foucault's Discipline & Punish, which describes [stop reading if you're squeamish] a man condemned I think for regicide. His flesh is torn away from his body by special hot calipers; then molten lead & hot wax are poured on the exposed flesh; then he's tied to four horses who attempt to "quarter" him, but they have trouble with it, so he has to be hacked apart. He screams out through much of it and is still evidently alive even after his body is separated... (it's described in greater detail in the book).

Basically, what was cruel & unusual then is not even within possibility now. But in a way that's the brilliance of the provision - times change, and norms change, and it is therefore up to the modern justice system to argue out what constitutes acceptable punishment, using this rather vague guideline and the years of precedents to come to conclusions.
posted by mdn at 9:29 AM on December 16, 2005