Fathers thought that the prohibition on cruel and unusual punishment
Immediately following the founding of the nation, the High Court took up the issue of what constituted cruel and unusual punishment
in Wilkerson v.
(302.) See, e.g., Goldberg & Dershowitz, supra note 193, at 1796-97 (arguing that "[i]nherent in the logic of a ban on cruel and unusual punishment
is the requirement that a penalty serve some other end besides retribution more effectively than any other less severe penalty" and that, "[o]therwise, the most horrible tortures[, such as boiling in oil] might be permissible"); Fairness in Drug Sentencing, N.Y.
imposes cruel and unusual punishment
. (121) Yet there is also little
The historic prohibition of cruel and unusual punishments
never invited a general inquiry into how governments around the globe were treating people.
The phrase "cruel and unusual punishments
" to him "means not ...
The court in Furman did not find the death penalty to be cruel and unusual punishment
per se, but rather determined that the manner in which it was imposed across the nation was so arbitrary and variable that its application amounted to cruel and unusual punishment
in violation of the Eighth Amendment.
The fault in that approach is perhaps no more evident than in the court's death penalty cases, where the justices must grapple with the Eighth Amendment prohibition on inflicting "cruel and unusual punishments
." At the time the Bill of Rights was debated, the drafters were aware that they had been vague.
The cruel (but perhaps not unusual) irony is that the Supreme Court has done anything but clearly enunciate the law of the Eighth Amendment's reference to cruel and unusual punishment
. The Court is in fact spinning in a self-created eddy formed by two opposing currents of decisions it has rendered over the last century.
The Supreme Court held that an inmate was subjected to cruel and unusual punishment
in violation of the Eighth Amendment when prison guards handcuffed him to a hitching post to punish him for disruptive behavior.
They are boosted by a federal appeals court ruling last November that a 50-year prison sentence for a videotape thief was cruel and unusual punishment
, although the court stated that its decision did not "invalidate California's three-strikes law generally." Many supporters of the three-strikes law argue that harsh punishment for repeat offenders has cut California's crime rate by 42 percent, more than twice the national average, since voters approved the measure in 1994.
Maryland's ban comes as a result of a federal lawsuit filed on behalf of a dozen nonsmoking inmates suffering from allergies, asthma, and heart diseases, who contend that secondhand smoke violates their protection from "cruel and unusual punishment
" under the Eighth Amendment of the U.S.