The ______ test is used to determine whether a sentence constitutes cruel and unusual punishment.

Congress, as well as any state legislature, may prescribe the death penalty, also known as capital punishment, for capital offenses. The Supreme Court has ruled that the death penalty does not violate the Eighth Amendment's ban on cruel and unusual punishment, but the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out. Because of the Fourteenth Amendment's Due Process Clause, the Eighth Amendment applies against the states, as well as the federal government.

Eighth Amendment analysis requires that courts consider the evolving standards of decency to determine if a particular punishment constitutes a cruel or unusual punishment. When considering evolving standards of decency, courts look for objective factors to show a change in community standards and also make independent evaluations about whether the statute in question is reasonable.

History of the Death Penalty

Initial Ban 

In Furman v. Georgia, 408 U.S. 238 (1972), the Court invalidated existing death penalty laws because they constituted cruel and unusual punishment in violation of the Eighth Amendment.  The Court reasoned that the laws resulted in a disproportionate application of the death penalty, specifically discriminating against the poor and minorities.  The Court also reasoned that the existing laws terminated life in exchange for marginal contributions to society.

Reinstatement 

In Gregg v. Georgia, 428 U.S. 153 (1976), the Court refused to expand Furman. The Court held the death penalty was not per se unconstitutional as it could serve the social purposes of retribution and deterrence.  Specifically, the Court upheld Georgia’s new capital sentencing procedures, reasoning that the Georgia rules reduced the problem of arbitrary application as seen in earlier statutes.

Proportionality Requirement

In Coker v. Georgia, 433 U.S. 584 (1977), the U.S. Supreme Court held that a penalty must be proportional to the crime; otherwise, the punishment violates the Eighth Amendment's prohibition against cruel and unusual punishments. In performing its proportionality analysis, the Supreme Court looks to the following three factors: a consideration of the offense's gravity and the stringency of the penalty; a consideration of how the jurisdiction punishes its other criminals; and a consideration of how other jurisdictions punish the same crime.

Twenty-one years later, in Kennedy v. Louisiana, 554 U.S. 407 (2008), the Supreme Court extended its ruling in Coker, holding that the penalty is categorically unavailable for cases of child rape in which the victim lives. Because only six states in the country permitted execution as a penalty for child rape, the Supreme Court found that national consensus rendered the death penalty disproportionate in these cases.

Principle of Individualized Sentencing 

To impose a death sentence, the jury must be guided by the particular circumstances of the criminal, and the court must have conducted an individualized sentencing process. In Ring v. Arizona, 536 U.S. 584 (2002),  the Supreme Court held that it is unconstitutional for "a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty." 

The Supreme Court further refined the requirement of "a finding of aggravating factors" in Brown v. Sanders, 546 U.S. 212 (2006). For cases in which an appellate court rules a sentencing factor to be invalid, the sentence imposed becomes unconstitutional unless the jury found some other aggravating factor that encompasses the same facts and circumstances as the invalid factor.

Kansas v. Marsh, 548 U.S. 163 (2006) offered yet another clarification to the principle of individualized sentencing jurisprudence. Under Marsh, states may impose the death penalty when the jury finds any aggravating and mitigating factors to be equally weighted, without violating the principle of individualized sentencing.

Method of Execution

A legislature may prescribe the manner of execution, but the manner may not inflict unnecessary or wanton pain upon the criminal. 

State courts and lower federal courts have refused to strike down hanging and electrocution as impermissible methods of execution. In Baze v. Rees, 553. U.S 35 (2008), the Supreme Court held that the lethal injection does not constitute a cruel and unusual punishment. The Supreme Court in Baze also applied an "objectively intolerable" test to determine if the method of execution violates the Eighth Amendment's ban on cruel and unusual punishments. The legality of lethal injection was upheld in Glossip v. Gross, 576 U.S. __ (2015). 

Classes of Persons Ineligible for the Death Penalty

In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court determined that executing mentally retarded criminals violates the ban on "cruel and unusual punishments" because their mental handicap lessens the severity of the crime and therefore renders the extraordinary penalty of death as disproportionately severe. However, in Bobby v. Bies, 556 U.S. 825 (2009), the Court held that states may conduct hearings to reconsider the mental capacity of death row inmates who were labeled mentally retarded before the Court decided Atkins, because before Atkins, states had little incentive to aggressively investigate retardation claims.

In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court invalidated the death penalty for all juvenile offenders. The majority opinion pointed to teenagers' lack of maturity and responsibility, greater vulnerability to negative influences, and incomplete character development. The Court concluded that juvenile offenders assume diminished culpability for their crimes.

In Hall v. Florida, 572 U.S. __ (2014), the Supreme Court held that a brightline IQ threshold may not decide whether someone is intellectually disabled (formerly "mentally retarded") for the purpose of being eligible for the death penalty.  

Further Reading

For more on the death penalty, see this Florida State University Law Review article, this Cornell Law Review article, and this Harvard Law Review article. 

The Eighth Amendment to the United States Constitution prohibits the infliction of "cruel and unusual punishments." Virtually every state constitution also has its own prohibition against such penalties.

In a nutshell, the cruel and unusual punishment clause measures a particular punishment against society's prohibition against inhumane treatment. It prevents the government from imposing a penalty that is either barbaric or far too severe for the crime committed.

This article will look at how courts evaluate whether a punishment is cruel and unusual and how this standard has evolved.

Eighth Amendment: Evolving Standards of Decency

The practical meaning of "cruel and unusual" has troubled courts for generations, because it is difficult to imagine that any punishment, no matter how barbarous, should be accepted simply because it is "usual." As long ago as 1910, the Supreme Court acknowledged that "what constitutes a cruel and unusual punishment has not been exactly decided." (Weems v. U.S., 217 U.S. 349.)

Hoping to give the cruel and unusual punishment clause a more workable application, the Supreme Court began to follow the "evolving standards of decency" test. In 1958, Chief Justice Earl Warren wrote that the clause "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." (Trop v. Dulles, 356 U.S. 86, 100-101 (1958).) The Court continues to follow the evolving standards approach today.

Eighth Amendment: The Punishment Must Fit the Crime

The evolving standards approach looks not only at the nature of the punishment in each case but also at whether it fits the severity of the crime. Courts look to the sentences for other criminals in the state where the crime occurred, and the sentences for the same crime in other states. When more serious offenses result in less punishment than the punishment being examined, or when other states punish the identical crime less severely, a court is likely to conclude that the punishment does not fit the crime and strike the sentence.

However, a punishment isn't unconstitutional simply because it is severe. The Eighth Amendment forbids only grossly excessive penalties. No particular term of years in prison is forbidden, nor is the death penalty inherently cruel or unusual. And what one court might find to be cruel and unusual, another court could find a similar sentence constitutional.

For example, the Alaska Supreme Court struck down a defendant's 36-year sentence imposed for passing a series of bad checks totaling $1,384.35 and directed the trial court to resentence the defendant. (Faulkner v. State, 445 P.2d 815 (1968).) But one might be surprised to learn that the U.S. Supreme Court once held that a 25-year-to-life sentence for stealing three golf clubs under a state's "three strikes" law wasn't unconstitutional. (Ewing v. California, 538 U.S. 11 (2003).)

Public Opinion Matters

Public opinion can be crucial in evaluating whether a punishment is cruel and unusual under the evolving standards test. The Supreme Court gauges this opinion in part by looking to the states' legislatures and juries. For example, the Court held that the death penalty is an unconstitutional punishment for the crime of rape. (Coker v. Georgia, 433 U.S. 584 (1977).) It rested its opinion in large part on the fact that only one of the 50 states authorized this sentence. It also focused on the reluctance of juries in that state to impose the death sentence for rape convictions. Similarly, the Court relied heavily on a trend toward abolition of the death penalty for the intellectually disabled and for minors. (Atkins v. Virginia, 536 U.S. 304 (2002); Roper v. Simmons, 543 U.S. 551 (2005).)

Importantly though, the Court has noted that it will not ignore its own judgment as to whether a punishment is reasonable. (Atkins, 536 U.S. at 122.)

Eighth Amendment: Prison and Jail Conditions

The cruel and unusual punishment clause also applies to conditions of incarceration. Prison officials may not deprive inmates of "the basic necessities of life, which include reasonably adequate food, clothing, shelter, sanitation, and necessary medical attention." (Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977).) Nor may they "maliciously and sadistically" use force to harm inmates. (Hudson v. McMillian, 503 U.S. 1 (1992).)

Eighth Amendment: Excessive Fines

The Eighth Amendment to the Constitution also has an excessive fines clause, which can limit the property the government can seize in forfeiture proceedings from people accused of crimes. For more information on the ban on excessive fines, read up on sentencing for criminal defendants.

Examples of Court Rulings on Cruel and Unusual Punishment

Whether applied to prison conditions or criminal sentencing, the meaning of "cruel and unusual" isn't much clearer today than it was in 1790. However, the Supreme Court has at least determined that we must evaluate the appropriateness of particular punishments in light of developing social standards.

Here are some punishments that courts have found cruel and unusual:

• execution of those who are insane
• a 56-year term for forging checks totaling less than $500
• handcuffing a prisoner to a horizontal bar exposed to the sun for several hours, and
• a life-without-parole sentence for a juvenile who has not committed homicide.

Punishments that have been found to be constitutional include:

• felony punishment for petty theft for a defendant with a prior felony
• automatic probation ineligibility for sale or possession for sale of heroin
• criminal prosecution of a homeless, chronic alcoholic for public intoxication, and
• a life-without-parole sentence for aggravated kidnapping for ransom where the victim suffers physical injury.

Talk to an Attorney

Talk to a criminal defense attorney if you have questions regarding the constitutionality of a particular sentence, condition of the sentence, or incarceration conditions.

Read on to learn more about the origin and early applications of the ban, which dates back to 1689.

The Origin and Early Application of the Ban on Cruel and Unusual Punishment

The English Declaration of Rights of 1689 is the source of the prohibition against cruel and unusual punishment. When the Declaration was issued, fairly gruesome punishment was meted out as a matter of course. For example, dozens of offenses, including those as minor as grand theft, were punishable by death. America's adoption of the ban on cruel and unusual punishment took place within a similar context—the men who wrote the Constitution were aware of harsh colonial practices such as repeatedly plunging low-level offenders under water.

While the English framers' purpose was to outlaw savage and torturous forms of punishment, modern readers may wonder how the punishments of the day escaped censure under the lofty ban. In America, many punishments survived under the cruel and unusual punishment clause simply because they had long been permissible. Courts upheld punishments such as disenfranchisement for dueling, whipping for illegal gambling, and banishment for larceny because these were acceptable English (and hence American) practices.

However, American courts considered certain historical punishments inherently cruel and unusual. For centuries, governments throughout the world had inflicted punishments like crucifixion, burning at the stake, breaking on the wheel, quartering, and the rack and thumbscrew. While the United States practiced certain lesser forms of physical punishment even after the Eighth Amendment, these practices eventually abated. Nevertheless, prisoners today continue to argue, sometimes successfully, that particular conditions cross the line.