cruel-and-unusual

Sorochi Constitution Project – 8th Amendment

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Sorochi Sunday Ms. Lafuse World History I 2 June 2023 By granting powers not included in the Articles of Confederation, the Constitution strengthened the federal government. Federal crimes were established in the Constitution, and Congress had full power to define them and determine the appropriate punishments.

Congress’ authority over federal crimes worried some American leaders. At the time, no part of the Constitution regulated the punishments for federal crimes, leaving the possibility of Congress abusing their power. In response to fears of the federal government issuing oppressive punishments, the 8th Amendment was added to the Constitution. Part of the 8th Amendment prohibits “cruel and unusual punishments,” meaning criminals should not receive inhumane penalties for their crime. 

Debates have risen concerning how the words “cruel” and “unusual” should be interpreted. After defining these terms, the following question is: which standard, 1971, when the Bill of Rights was created, or modern day, should punishments be held to. Supreme Court Justices Clarence Thomas and Antonin Scalia believe that any punishment that was permissible in 1791 cannot be considered cruel or unusual. With their interpretation, capital punishment, while now controversial, would be considered Constitutional, since it was used in America during 1791.

Additionally, they believe that a punishment being disproportionate to crime committed does not necessarily mean the punishment is cruel. Conversely, Chief Justice Earl Warren believes interpretation of the clause should evolve over time to fit the changing standards of decency. He argues that a change in interpretation marks progress in society. Legal scholar John F. Stinneford disagrees with both Justices Thomas and Scalia, and Chief Justice Warren. He believes the meaning of cruel and unusual should fit the original public meaning.

According to him, the standard of cruelty the general public held in 1791 should be the standard judges use as they interpret the Constitution. In an attempt to preserve the original meaning, he also argues “unusual” should be interpreted as new or unprecedented, rather than rare. He claims that his interpretation is founded off of research into the original meaning of the 8th Amendment.  I find Chief Justice Warren’s interpretation most persuasive.

The other two interpretations discussed require one to understand the minds of people living the era of the Constitution, whether that be the framers or everyday people. However, both tasks seem very difficult to achieve in reality. Even with detailed research, discovering the exact thought process of the framers as they wrote the 8th amendment, let alone the average American in 1791, is improbable. Further, while historians have a better chance, with the brief and vague language of the 8th amendment, the average expertise of a judge may not be enough to reach a well-founded conclusion of any true original meaning. 

If I could amend this section, I would specify what is meant by “cruel”. To do this, I would list out some of the ways a punishment could be cruel, like so: a punishment that includes intentional torture or elongated killing, or is disproportionate in severity to the seriousness of the crime. I feel the word “cruel” is more important to the clause than “unusual”, as a punishment can be grossly inhumane, but also common.   

Parker – Eighth Amendment

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The Eighth Amendment of the United States Constitution is interesting and especially difficult to grapple with because of the lack of clarity in the writing of it. It reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Prior to the Revolutionary War, the Americans had been under British rule and had witnessed different forms of harsh punishments. They also wanted to protect individual liberties as much as possible and by preventing “Excessive bail,” they took some power away from the government because ultimately, the colonists were still afraid of giving too much power to the government. Although confusing, there are only so many possible interpretations of such simple writing. A common one is that bail should not be priced at a very high amount and that there would be a prohibition of inhumane and barbaric punishments and consequences.

The problem with the phrasing of the Eighth Amendment is the phrasing is overly simple to the point where it is nearly impossible to know how the author of this section intended for it to be interpreted. For example, Some people think that a “Cruel” punishment is going to jail in the first place and others think that the death penalty falls under “Cruel” punishments. A common claim made by legal scholars is that the treatment of the Eighth Amendment should evolve over time as society changes. Obviously the definition of “Cruel and unusual” will change and has changed over time. When the constitution was being written, people were still getting branded and hanged in public. Those forms of punishment haven’t been used in the states in an extremely long time. 

A famous court case that involves the Eighth Amendment is Atkins vs. Virginia. The case dealt with the question: is it cruel or unusual punishment to sentence people with intellectual disabilities to the death penalty? Ultimately, it was deemed cruel and or unusual because it was decided that people with intellectual disabilities lacked understanding of what the causes of their actions were and that they did not understand the consequences of them. A major factor in the decision of this case was in fact, the eighth amendment because ultimately, putting mentally challenged people to the death penalty was deemed “Cruel and unusual.”  

This year, we have learned about many forms of harsh and brutal punishments, so this was especially interesting to see that a country tried to mitigate them. It’s also fascinating to see how hard the authors tried to move away from British themes and practices; such as “Cruel and unusual” punishments. Out of all the arguments surrounding the Eighth Amendment, I find that the perception of it should and will continue to change over time. In my opinion, it is completely irrational to treat the Eighth Amendment like it was treated back in the eighteenth century because we’re not living in the eighteenth century. Dealing with issues from an eighteenth century perspective today, in the twenty-first century, is almost laughable if you think about how much has changed in the last 250 years. If I could, I would keep this clause in the constitution, but I would make sure to change the language to something more specific and have it reflect the current time period. It would also make sense to add something like, “The eighth amendment will be amended every 50 years” or something of that nature. Overall, I do think that the Eighth Amendment is important to the constitution, but with some changes, it could be much more valuable and applicable to solving different cases.