Cruel and Unusual Punishment Bleg



Murali did his undergraduate degree in molecular biology with a minor in biophysics from the National University of Singapore (NUS). He then changed direction and did his Masters in Philosophy also at NUS. Now, he is currently pursuing a PhD in Philosophy at the University of Warwick.

Related Post Roulette

15 Responses

  1. Avatar Jacob says:

    For a full history of the C&UP clause and its enactment and history, see the appendix in People v. Broadie, 37 N.Y.2d 100 (1975) ( (dealing mostly with excessively long imprisonment as cruel and unusual).

    I’ve excerpted some of the interesting bits and omitted the citations.

    The final judgment as to whether a punishment exceeds constitutional limitations is properly a judicial function.

    Historical analysis indicates that the constitutional proscription of cruel and unusual punishments was primarily intended to prohibit sadistic and purely degrading cruelty, that is, all forms of torture, whether outright barbarity or inhumane treatment for its own sake.

    “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

    In addition to cruel punishments which are that because they are degrading, barbarous, or painful for their own sake (sometimes in question-begging fashion characterized as inherently cruel), prohibited also are those punishments which are “cruelly” excessive, that is, grossly disproportionate to the crime for which they are exacted.

    Although there is an extensive body of case law on this issue, some other avenues of attack are the following:

    C&UP can result from “an unconstitutional denial of medical care”, to establish this, “a prisoner must prove “deliberate indifference to [his] serious medical needs.” Hathaway v Coughlin, 37 F3d 63, 66 [2d Cir 1994]

    Excessive force against prisoners: To determine whether defendants in an Eighth Amendment excessive force case acted maliciously or wantonly, court examines several factors, including extent of the injury and mental state of the defendant, the need for the application of force, correlation between that need and the amount of force used, threat reasonably perceived by the defendant, and any efforts made by the defendant to temper the severity of a forceful response. ?Scott v. Coughlin, C.A.2 (N.Y.) 2003, 344 F.3d 282.

    Conditions of imprisonment: Generally, “a state must provide … reasonably adequate ventilation, sanitation, bedding, hygienic materials, and utilities (i.e., hot and cold water, light, heat, plumbing)” Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir.1980)

    .Cruel and unusual punishment in confining an inmate for eleven days, naked, without soap, towels, or toilet paper, and without bedding of any kind, forcing the inmate to sleep on the floor, the temperature being “sufficiently cold to cause extreme discomfort”. Wright v. McMann, 460 F.2d 126, 129 (2d Cir.1972).

    McCray v. Burrell, 516 F.2d 357 (4th Cir.1975). the inmate was confined for two days in a cell where a concrete slab was initially the inmate’s bed. A mattress was furnished later during the first night, but no blankets were supplied. Although the record did not disclose the temperature in the cell, it was so cold that the inmate tore open the mattress and nestled inside. The inmate also was denied articles of personal hygiene.

    It’s quite a rabbit hole, and a very fact-specific inquiry. The point of punishment here, though, is at least nominally to deny the offender liberty, NOT to cause him physical pain, harm or suffering.

    Imagine you are confined in a very well-apportioned room. You are provided 5 star meals, sleep on only the finest Egyptian cotton sheets, and have access to the sum total of human knowledge and literature. Yet you cannot leave, visit your loved ones, see the sun and the stars and the sky. However comfortable, is that not punishment?Report

    • Avatar J@m3z Aitch says:

      Who is this Jacob fellow, and how can we persuade him to comment here more often? 😉Report

      • Avatar Jacob says:

        I’m a criminal attorney in New York. I read the blog daily, just don’t often find the perfect combination of a) a post about which I have anything meaningful to say, and b) about which everything meaningful hasn’t been said already.

        Timing is everything, I suppose.Report

  2. Avatar Burt Likko says:

    I think I mentioned a couple of days ago that we used to use stockades as a form of punishment through public humiliation, with respect to the a-hole who got sentenced to stand on a street corner displaying a humiliating sign. The degrading nature of the punishment in my mind gives it a serious Eighth Amendment problem despite what I must admit is a visceral appeal to the nature of the sentence.

    Punishment by modern standards takes the form of deprivation of one of the principal inherent personal rights — life, liberty, or property. That there is pain involved is not, in theory, supposed to happen other than if the term “pain” is read broadly as the negative of pleasure and is thus inherent in the nature of imprisionment.

    The purposes of the punishment are, ostensibly, a cocktail of specific deterrence, general deterrence, rehabilitation, and retribution. Practically, we simply haven’t come up with anything better than imprisionment that seems aimed at these goals, and I for one view with trepidation the vision of such punishment that relies too heavily on the notion of retribution.Report

    • Avatar Brandon Berg says:

      The degrading nature of the punishment in my mind gives it a serious Eighth Amendment problem

      Why? Several people expressed this sentiment, but nobody really justified it. What makes public humiliation special?Report

  3. Avatar Damon says:

    I’d take issue with “Of course punishments are cruel, they are intended to do so..” I think it’s a question of proportionality. If you’re caught stealing a loaf of bread, death might be excessive, but 10 lashes with a cane might not be (depending upon various societal / cultural issues)

    But you also need to remember that the Constitution is just a “scrap of paper” and it’s conveniently disregarded when inconvenient or when you can get away with doing something “unconstitutional”.Report

    • Avatar Murali says:

      The death penalty would be excessively cruel for theft, but insofar as any corporal punishment or prison time causes mental anguish, standard punishments cause pain and are ipso facto cruel on that count as well.Report

    • Avatar greginak says:

      The definitions of cruel and unusual are going to change and how we read the minds of the sainted founders about what they though cruel and unusual were is inherently problematic. The Big C isn’t a mere scrap of paper but it isn’t holy words that we read with perfect clarity and True Knowledge of the Creators intentions and understanding.Report

  4. Avatar Creon Critic says:

    I’d like to highlight that “evolving standards of decency” standard mentioned above. One place justices have looked is to the practices of other peer nations and to the international human rights regime (not necessarily as controlling, but to inform an analysis of US practices, e.g. Roper v. Simmons).

    As expressed by many international human rights instruments cruelty and cruelty as the object of punishments are improper guiding lights for a penal system. Here for instance is the American Convention on Human Rights,

    Article 5. Right to Humane Treatment
    1. Every person has the right to have his physical, mental, and moral integrity respected.
    2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
    3. Punishment shall not be extended to any person other than the criminal.
    4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons.
    5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.
    6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.


  5. I’m not a lawyer, so I don’t know the jurisprudence, but I imagine “unusual” might have something to do with “arbitrary.” If a punishment is provided for by statute, or has been commonly practiced, then it is not “unusual.”

    In other words, if you do the crime, you’re gonna know roughly what kind of crime you’d do if you get caught.Report

    • Avatar Glyph says:

      In other words, if you do the crime, you’re gonna know roughly what kind of crime you’d do if you get caught.

      I assume the second “crime” s/b “time”. This is a good point, from a practical perspective as well. IIRC, studies have shown that to prevent recidivism (say in drug offenders) punishments work better as deterrents when the punishments are swift and predictable/certain, moreso than “harsh”.Report

    • Avatar DavidTC says:

      While I agree that punishment not explicitly provided by statue would be unusual, I’m not actually certain that’s what the phrase is intended to stop. Most of the time, punishments *are* provided by law.

      I think ‘unusual’ is basically there to restrict ‘cruel’. I.e., locking someone up for years is, in fact, fairly cruel…but it’s a perfectly usual punishment, so is allowed.

      Meanwhile, making someone stand on the side of the road holding a sign explaining their crimes is *unusual*, but it is not, in any meaningful way, ‘cruel’. So it’s allowed.

      But something like denying access to a bathroom or medical care, is both cruel, as in, physically painful and humiliating, and unusual, in that it’s not something that is prescribed under any law at all.

      And an interesting fact is that the courts are perfectly willing to keep reconsidering what is ‘usual’. Just because one place allows something by statue doesn’t make it ‘usual’.Report

      • Avatar Murali says:

        So how is it that we don’t necessarily wrong a criminal by giving him a cruel punishment, but we wrong him when it is cruel and unusual?Report

      • Avatar DavidTC says:

        I’m not sure which way you’re asking. Are you asking why it’s okay to do cruel things, or not okay to do cruel and unusual things?

        If the first: ‘Cruel’ does not mean ‘unjust’. Cruel just means ‘inflicting pain or suffering to others’. Strictly speak, *all* punishment is cruel. That is the entire premise of punishment, a deliberate attempt to cause pain or suffering. (‘Punishment’, of course, is just one of the purposes of the legal system, but the others are not important here. I’m talking about punishment specifically.)

        However, the counts generally exclude trivial amounts of short-term suffering from ‘cruel’. Trivial amounts of work, trivial amounts of embarrassment, etc. All sorts of innovative punishments are allowed if they basically are ‘sentenced to do stuff that people regularly do for money’, like holding a sign up or community service or whatever. If it’s *less cruel* than imprisonment, than it’s generally not thought of as ‘cruel’.

        As for why we don’t allow *unusual cruelties’, it’s because the cruelties that are well know have *very specific restrictions*, and we know exactly how they work and exactly what limits are permissible.

        And, with so few to choose from, we can easily make some sort of sliding scale of punishment. Mostly the cruelty is ‘imprisonment’ and we just adjust the time.

        If we started allowing criminals to be sentenced to *random* cruelties, no one knows what sort of nonsense we might get. Well, actually, yes, the founder fathers *did* know exactly what sort of nonsense you could get, hence the rule.Report

      • Avatar Murali says:

        The question is why we think unusual cruelties are worse than usual ones. The don’t know how they work thing doesn’t seem like the sort of thing that is going on when things like corporal punishment are declared cruel and unusual. Historical familiarity with such punishments are a given.Report