thesis statement for the 8th amendment

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This essay is about the 8th amendment and the dabate over cruel and unnatural punishments.

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The first amendment, interpretation & debate, the eighth amendment, matters of debate, common interpretation, against cruel innovation: the original meaning of the cruel and unusual punishments clause, and why it matters today, the eighth amendment: a contemporary perspective.

by Bryan A. Stevenson

Professor of Clinical Law, New York University School of Law, and Executive Director, Equal Justice Initiative

by John F. Stinneford

Professor of Law and Assistant Director, Criminal Justice Center, University of Florida Levin College of Law

The Eighth Amendment to the United States Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This amendment prohibits the federal government from imposing unduly harsh penalties on criminal defendants, either as the price for obtaining pretrial release or as punishment for crime after conviction.

The Cruel and Unusual Punishments Clause is the most important and controversial part of the Eighth Amendment.  In some ways, the Clause is shrouded in mystery. What does it mean for a punishment to be “cruel and unusual”? How do we measure a punishment’s cruelty? And if a punishment is cruel, why should we care whether it is “unusual”?

We do know some things about the history of the phrase “cruel and unusual punishments.” In 1689 – a full century before the ratification of the United States Constitution – England adopted a Bill of Rights that prohibited “cruell and unusuall punishments.” In 1776, George Mason included a prohibition of cruel and unusual punishments in the Declaration of Rights he drafted for the Commonwealth of Virginia. In 1791, this same prohibition became the central component of the Eighth Amendment to the United States Constitution.

When the United States Constitution was first ratified by the states, it did not contain a Bill of Rights, and it did not prohibit cruel and unusual punishments. These protections were not added until after the Constitution was ratified. The debates that occurred while the states were deciding whether to ratify the Constitution shed some light on the meaning of the Cruel and Unusual Punishments Clause, because they show why many people thought this Clause was needed.

The proposed Constitution made the federal government much more powerful than it had been under the Articles of Confederation. One of the most significant of these new powers was the power to create federal crimes and to punish those who committed them. Opponents of the Constitution feared that this new power would allow Congress to use cruel punishments as a tool for oppressing the people. For example, Abraham Holmes argued that Congress might repeat the abuses of “that diabolical institution, the Inquisition,” and start imposing torture on those convicted of federal crimes: “They are nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline.” Patrick Henry asserted, even more pointedly than Holmes, that the lack of a prohibition of cruel and unusual punishments meant that Congress could use punishment as a tool of oppression: “Congress . . . . may introduce the practice of France, Spain, and Germany of torturing, to extort a confession of the crime. They . . . will tell you that there is such a necessity of strengthening the arm of government, that they must . . . extort confession by torture, in order to punish with still more relentless severity. We are then lost and undone.” Largely as a result of these objections, the Constitution was amended to prohibit cruel and unusual punishments.

As these debates demonstrate, the Cruel and Unusual Punishments Clause clearly prohibits “barbaric” methods of punishment. If the federal government tried to bring back the rack, or thumbscrews, or gibbets as instruments of punishment, such efforts would pretty clearly violate the Eighth Amendment. Most people also agree that the Cruel and Unusual Punishments Clause now limits state power as well as federal power, because the Fourteenth Amendment prohibits states from abridging “the privileges or immunities of citizens of the United States” and from depriving “any person of life, liberty, or property, without due process of law.”

But once we get beyond these areas of agreement, there are many areas of passionate disagreement concerning the meaning and application of the Cruel and Unusual Punishments Clause:

First and foremost, what standard should the Court use in deciding whether a punishment is unconstitutionally cruel?  Should it look to the standards of 1791, when the Eighth Amendment was adopted? Should it look to contemporary public opinion?  Should it exercise its own moral judgment, irrespective of whether it is supported by societal consensus? Should it look to some other standard?

Second, does the Cruel and Unusual Punishments Clause only prohibit barbaric methods of punishment, or does it also prohibit punishments that are disproportionate to the offense? For example, would it violate the Eighth Amendment to impose a life sentence for a parking violation?

Third, does the Cruel and Unusual Punishments Clause prohibit the death penalty? Many argue that capital punishment fails to advance any public good, that it is of a past era, and it should be eliminated. Proponents of the death penalty argue that some people have committed such atrocious crimes that they deserve death, and that the death penalty may deter others from committing atrocious crimes. They also point out that the punishment is authorized in a majority of states, and public opinion polls continue to show broad support for it.

Finally, are some modern methods of punishment – such as the extended use of solitary confinement, or the use of a three-drug “cocktail” to execute offenders – sufficiently “barbaric” to violate the Eighth Amendment?

There is not time or space here to answer all these questions, but the essays that follow will demonstrate differing ways of approaching several of them.

This essay concerns the original meaning of the Cruel and Unusual Punishments Clause. It argues that the Constitution should be interpreted in accordance with its original public meaning, and it demonstrates what effect such an interpretation would have in the real world. 

In recent years, some judges and scholars have argued that the meaning of the Constitution should change as societal values change. For example, Chief Justice Earl Warren once famously wrote that the Cruel and Unusual Punishments Clause should “draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles (1958). This approach allows the Supreme Court to get to whatever result it considers desirable, regardless of what the text of the Constitution actually means. If the Court wanted to get rid of the death penalty, for example, it could simply announce that the death penalty no longer comports with current “standards of decency,” and thereby abolish it. Originalists object to this approach for many reasons, including the fact that it is inconsistent with democratic principles and the rule of law. Phrased differently, there is nothing in the Constitution that gives unelected judges the authority to overturn laws enacted by democratically elected legislatures, based on the judges’ own subjective ideas of what current “standards of decency” require.

In response to the non-originalist approach to the Constitution, some judges and scholars – most prominently Justices Scalia and Thomas – have argued for a very narrow approach to original meaning that is almost willfully indifferent to current societal needs. To understand their approach, let us revisit the four questions raised in the joint statement concerning the settled history and meaning of the Eighth Amendment: (1) What standard should the Court use in deciding whether a punishment is unconstitutionally cruel? (2) Does the Cruel and Unusual Punishments Clause only prohibit barbaric methods of punishment, or does it also prohibit punishments that are disproportionate to the offense? (3) Does the Cruel and Unusual Punishments Clause prohibit the death penalty? (4) Are some modern methods of punishment – such as the extended use of solitary confinement, or the use of a three-drug “cocktail” to execute offenders – sufficiently “barbaric” to violate the Eighth Amendment? 

Justices Scalia and Thomas argue that the four questions raised above should be answered as follows: (1) The standards of cruelty that prevailed in 1791, the year the Eighth Amendment was adopted, provide the appropriate benchmark for determining whether a punishment is cruel and unusual. If a punishment was acceptable in 1791, it must be acceptable today. (2) The Clause prohibits only barbaric methods of punishment, not disproportionate punishments. A life sentence for a parking violation, for example, would not violate the Constitution. (3) The Cruel and Unusual Punishments Clause does not prohibit the death penalty, because capital punishment was permissible in 1791, and because the text of the Constitution mentions the death penalty. Specifically, the Fifth Amendment commands that “No person shall be held to answer for a capital . . . crime, unless on a presentment or indictment of a Grand Jury . . . nor be deprived of life . . . without due process of law.” If the death penalty were unconstitutional, they argue, it would not be mentioned in the Constitution. (4) Modern methods of punishment may violate the Cruel and Unusual Punishments Clause only if they are deliberately designed to inflict pain for pain’s sake, and are objectively harsher than punishments permissible in 1791. Since flogging, branding, and various forms of bodily mutilation were permissible in the Eighteenth Century, few modern forms of punishment are likely to fall into this category.

My own research into the original meaning of the Cruel and Unusual Punishments Clause shows that Justice Scalia’s and Thomas’s approach has a fatal flaw: It ignores the meaning of the word “unusual.” Their decision to ignore this word makes sense because there seems to be no connection between a punishment’s rarity and its cruelty. In other words, a common punishment might be more cruel than a rare one: For example, it would be more cruel to commit torture on a mass scale than on rare occasions, not less. But in reality, the word “unusual” in the Eighth Amendment did not originally mean “rare”– it meant “contrary to long usage,” or “new.” A punishment is cruel and unusual if it is “cruel in light of long usage” – that is, cruel in comparison to longstanding prior practice or tradition. 

This understanding of the original meaning of the Cruel and Unusual Punishments Clause leads to very different results than either the non-originalist approach or Justices Scalia’s and Thomas’s approach. The best way to understand this is to run through those four questions once again, using our new understanding of the original meaning of the Clause: 

(1) The appropriate benchmark for determining whether a punishment is cruel and unusual is neither the subjective feelings of the current Supreme Court nor the outdated standards of 1791. Rather, the benchmark is longstanding prior practice. If a given punishment has been continuously used for a very long time, this is powerful evidence that multiple generations of Americans have considered it reasonable and just. This does not mean that any punishment that was once part of our tradition can still be used today.  If a once-traditional punishment falls out of usage for several generations, it becomes unusual. If a legislature then tries to reintroduce it, courts should compare how harsh it is relative to those punishment practices that are still part of our tradition.

(2) The Clause prohibits disproportionate punishments as well as barbaric methods of punishment. If a punishment is significantly harsher than punishments traditionally given for the same or similar crimes, it is cruel and unusual, even though the same punishment might be acceptable for other crimes. For example, it would be cruel and unusual to impose a life sentence for a parking violation, but not for murder. 

(3) The death penalty is currently constitutional because it is a traditional punishment that has never fallen out of usage. If it fell out of usage for multiple generations, however, it might become cruel and unusual. This has already occurred with respect to some once-traditional applications of the death penalty. It is no longer constitutional to execute a person for theft, for example, because this punishment fell out of usage for this crime a long time ago, and the punishments that have replaced it are far less severe. 

(4) Some new punishment practices, such as lethal injection or long-term solitary confinement, appear to pose a risk of excessive physical or mental pain. If a court were to find that their effect is significantly harsher than the longstanding punishment practices they have replaced, it could appropriately find them cruel and unusual.

In 1804, Aaron Burr, the sitting Vice President of the United States, shot and killed Alexander Hamilton in a duel that took place in New Jersey. Burr ran for governor of New York and Hamilton – widely considered the most influential “founding father” of the United States – opposed his candidacy, making public remarks that Burr found insulting. Burr lost the election, and he blamed Hamilton, so he challenged Hamilton to a duel. Dueling had a long history in the United States; in fact, Hamilton’s son had died in a duel a few years earlier. Dueling continued in the United States until the mid-19th century. Burr was never prosecuted for the murder of Hamilton. After Hamilton’s death, many religious leaders began arguing for the abolition of dueling the way some people now seek the abolition of the death penalty.

Today, dueling is deemed unconscionable. No American leader could credibly support dueling as an acceptable method for resolving conflicts. It is hard for us now to understand how the Framers of our Constitution could embrace such a misguided and barbaric practice. It is unfathomable to us today that those who drafted our nation’s charter nonetheless accepted human slavery, denied women equal treatment and the right to vote, and violently removed Native Americans from their land in what many historians now characterize as genocide. Neither the Constitution’s Framers nor the document they created was flawless. To become a great country, America needs its laws and basic constitutional principles to evolve as our understanding of human capacity and behavior deepens. For many, this means it is critical to reject efforts to limit constitutional protections to the “original intentions” of the flawed men who wrote the Constitution.

The greatness of our Constitution and America itself is dependent on how the Constitution is interpreted to ensure that all people are treated equally and fairly and have the same opportunity to exercise the rights to life, liberty, and the pursuit of happiness as the exclusive group of men who authored the Constitution. As our notions of fairness, equality, and justice have evolved, so too must our interpretation of the Constitution. No provision of the Constitution enshrines this principle more clearly than the Eighth Amendment. 

Progressive perspectives on the Eighth Amendment insist that “evolving standards of decency” must shape and inform the Supreme Court’s application of the Eighth Amendment. Focusing on the original intentions of “Founding Fathers” cannot resolve important questions about punishment today.

Another Perspective

This essay is part of a discussion about the Eighth Amendment with John F. Stinneford , Professor of Law and Assistant Director, Criminal Justice Center, University of Florida Levin College of Law. Read the full discussion here .

This approach begs complex questions, such as who decides what is decent and what is cruel? Some Supreme Court justices believe it is the Court’s responsibility to make these decisions independently, because a punishment may be cruel and unusual even if it is popular among the general public and even if a legislature has deemed it appropriate. Throughout its history, the Court has ruled that certain practices are unconstitutional or indecent even when such practices were popular. Ending racial segregation in schools or restaurants and striking down bans on interracial marriage never could have been achieved by a popular vote in the American South. Black people were a political minority, and policies that denied their basic rights were extremely popular. Accordingly, progressives believe the Court must protect the disfavored, the unpopular, the minority groups who can expect no protection from officials elected by majority vote. For progressives, what constitutes cruel punishment cannot be resolved by opinion polls or the popularity of the punishment. The legitimacy of a punishment must be assessed instead by evaluating whether it serves an appropriate and acceptable penological purpose.

In this respect, the Eighth Amendment does not merely prohibit barbaric punishments; it also bars disproportionate penalties. A sentence of life imprisonment without parole may be acceptable for some crimes, but it would violate the Constitution to condemn anyone to die in prison for shoplifting or simple marijuana possession. For progressives, the constitutionality of a particular punishment cannot be evaluated in the abstract. The decency or legitimacy of a punishment can be assessed reliably only in context.

I believe that the question whether the death penalty violates the Eighth Amendment cannot be resolved by simply asking whether a person deserves to die for the crime he has committed. I believe we must first ask whether we deserve to kill. If we have a death penalty that is applied in a racially discriminatory manner, where the race of the victim shapes who gets the death penalty and who does not; if we have a death penalty that is imposed not on the rich and guilty but on the poor and innocent; if we execute people with methods that are torturous and inhumane, then we have a death penalty that violates the Eighth Amendment. Since the modern era of capital punishment in the United States began in the 1970s, 154 people have been proven innocent after being sentenced to death.  We have executed more than 1400 people during the same time period. For every nine people executed, one innocent person has been exonerated. For progressives, this is an unacceptably high rate of error: The probability that an innocent person has been or will be executed offends our standards of decency, and renders the death penalty cruel and unusual punishment that violates the Eighth Amendment. Fairness, reliability, racial discrimination, bias against the poor, political arbitrariness, and other factors that did not trouble the framers of the Constitution, nonetheless shape how a decent society must interpret the Eighth Amendment today.

Finally, evolving standards of decency will require the Court to prohibit many modern punishments that didn’t exist in the eighteenth century, like solitary confinement or death-in-prison sentences for children or the mentally ill. For progressives, the Constitution must evolve and be interpreted so that the rights of people who are less favored, less protected, and less influential are not sacrificed to serve the interests of the powerful and the popular. The framers of the American Constitution should be celebrated for creating a prohibition on punishments which are cruel and unusual; but it is incumbent on all of us to insist on a Court that applies the prohibition fairly, sensibly and justly for an evolving nation.

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How the Prison System Violates the 8th Amendment

“It is said that no one truly know a nation until one has been insides its jails. A nation should not be judged by how it treats its highest citizens, but its lowest one”. In this quote, Nelson Mandela highlights that the way prisoners are being treated will tell you about its government. Today, in our modern world, our prisons can be described as modern day slavery. The way our prisons system is ran, it questions the values we stand for as a country. Our prison system in America is definitely one of the worst. This is because it prioritizes anything and everyone but the prisoners and violates the 8th amendment. All these arguments contribute to the focus argument of this essay; does prison violates the 8th amendment? We will be focusing on this throughout the the essay, because this is also controversial topic and issue.

The 8th amendment starts to become a big debate when people are talking about the death penalty or giving someone a lengthy time in prison therefore this is a area where many people differ. One of the topics of the debate is what standard should be used when the courts are deciding whether or not a punishment is unconstitutional and cruel. Some of the issues that the courts have is whether it they should look at it from the perspective of when the 8th amendment was adopted in 1791 or if it should go based on public opinion or moral views. Another argument is if the 8th amendment only bans ruthless punishments or punishments that are not compatible to the the offence. Another argument that is controversial is whether or not the death penalty falls under “cruel and unusual punishment” so should it be considered unconstitutional. One side believes that if a person commits a horrific crime, they deserve the death penalty but the other side believes no crime is worthy of the death penalty.

Prison serves four main purposes. They are incapacitation, deterrence, retribution, and rehabilitation. Incapacitation is when a criminal is ostracized from society so that he/she will not harm innocent people. Deterrence is to convince the prisoner to be afraid to commit the crime again and to scare others from wanting to commit the same crime. Retribution is when a criminal’s freedom is taken away because they have committed crime against the society. Rehabilitation is designed to transform criminals into law abiding citizens through various methods including activities such as being offered jobs, in-prison education, counselling etc.

The motivation behind jail as examined already appears to be a sensible method for managing individuals who have perpetrated violations. The issue exists in the way that what is composed on paper isn’t being done in real life in each jail. Today we have numerous cases and issues where detainment facilities are conflicting with what they guarantee to depend on and are likewise conflicting with the eighth amendment. Jails were configuration to be a place that somebody goes and contemplate about what they’ve done and turned out with a superior mentality on how they should live in the public arena. While in jail, one ought not need to stress over being dealt with like a creature or being denied of fundamental necessities like medicine. Jail ought not be where a man in general wellbeing and prosperity is disregarded.

For instance, the Brown v. Plata case, according to oyez.org, is about how the prison law office in Berkeley California filed a lawsuit on behalf of Marciano Plata and several other prisoners. They felt as if the prisons were violating the 8th amendment by being “cruel and unusual” because of overcrowding in the prisons. Three federal judges determined that the serious overcrowding in California 33’ prisons was the “primary cause” for violations of the 8th amendment. The court ordered for the release of enough prisoners so the inmate population would come within 137.5 percent of the prison total design capacity, according to oyez.com.

The reason why overcrowding in prisons is considered “cruel and unusual punishment” simply because it facilitates the conditions for inmates to become sick. Overcrowding in prisons makes it difficult for prisons to meet basic human needs, which is very “cruel and unusual”. Also programs such as rehabilitation programs and educational programs would be difficult to distribute to each inmate. Overcrowding in prisons also do not allow prisoners to have any sort of privacy and leads to fights in prisons between inmates, which is threatening to everyone’s life in the prison.

Another case that involves a prison going against the 8th amendment is the Coleman v. Brown case. An article from Cornell Law School was published called, “Eighth Amendment: Cruel and Unusual Punishment and the Prison Litigation Reform Act” mentions how in 1995, the district court found the Coleman case failed to provide the inmates in California prisons with care for mental illness as the inmates were not receiving proper medical treatment. This went against the 8th amendment because it threatens the inmates well being. It is also goes against the purpose of prison in the first place. If the inmates are expected to go back into society and be active citizens, we need to make sure that they are giving them the proper care needed to achieve their transformation goal. Prison is supposed to help one reflect and become a better human being but with the current prison conditions, it is extremely hard for an inmate to come out of a prison and be an active citizen as expected.

Furthermore, according to Oyez.com, the Graham v. Florida case was about a teenage boy name Terrance Graham who was convicted of armed burglary and attempted armed robbery. He served a one year sentence and was released. About six months later, Graham was convicted by the Florida State court of armed home robbery and was sentenced to life without parole. This is also considered as “cruel and unusual punishment” because Terrance is a juvenile who is receiving life without parole. He fought for his case until it reached the supreme court and the supreme court sided with Graham. This juvenile did not commit a homicide, but was sentenced to life without parole as if he was a monster who commited a horrific crime. This sort of sentencing is inhumane and unjust.

If we want to better our prison system we need to start with having actual medical treatment for the inmates by making it easier to access proper medical treatment. It is also important for us to not allow prisons to become overcrowded which makes it easy for issues to arise and for people to get sick. The government should also force every prison to have an education system for inmates, so that they can acquire the necessary knowledge to benefit themselves and society. They should also have counselling or a safe space where they can release themselves and talk about their issues. Thankfully, today we have individuals who are creating programs that aim to help inmates in prison, such as the prison-to-college pipeline. In fact, in some prisons, inmates are granted the opportunity to get an education while incarcerated. In an article by Carlowe J., it is mentioned how a healthcare worker failed to revive an inmate. The healthcare worker felt really bad but also felt as if it was the system that had failed the inmate as well. This is because he felt that they did not train him enough to deal with such predicaments. In our prisons, we need to make sure everyone who is working in the prison is trained properly, so no one’s feels that they’re always at risk and are guaranteed protection. Another program that is assisting inmates is called H.O.P.E. This program helps inmates who are getting out by providing them with housing, educational, and employment needs.

These are the type of programs we will need if we want inmates to succeed, even after they are convicted of a crime. We all make bad choices, some worse than others, but we mustn’t allow our bad choices to define us. As we are all trying to survive in this world, we need to help one another and not harm each other. And we can do so by providing necessary services to prisons and avoiding trespassing the 8th amendment. After all, no one deserves a “cruel and unusual punishment”.

Works Cited

• Legal Information Institute – Eighth Amendment: Cruel and Unusual Punishment and the Prison Litigation Reform Act
• Brown v. Plata. (n.d.). Oyez. Retrieved November 23, 2018, from https://www.oyez.org/cases/2010/09-1233
• Graham v. Florida. (n.d.). Oyez. Retrieved November 23, 2018, from https://www.oyez.org/cases/2009/08-7412
• 19 Actual Statistics about America’s Prison System, published by Laura Dimon 2014
• Carlowe, J. (2004). Prison reform. Nursing Standard (Royal College of Nursing (Great Britain) : 1987), 18(42), 16-7.

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