The wisdom of the death penalty has recently come under attack in a number of states. This raises the question of whether states’ retreat from the death penalty, or other punishments, will pressure other states—either politically or constitutionally—to similarly abandon the punishment. Politically, states may succumb to the trend of jettisoning a penalty. Constitutionally, states may be forced to surrender the penalty if the punishment is considered cruel, and, as a result of a large number of states renouncing the penalty, the punishment also becomes unusual. If a punishment is thus found to be both cruel and unusual, it will be proscribed under the Eighth Amendment Punishments Clause of the U.S. Constitution.
Considering the disappearance of some punishments and emergence of new punishments, whether a punishment is cruel under the Punishments Clause is an important question. Curiously, there has been very little discussion of what constitutes a cruel punishment, as distinguished from whether a punishment is also unusual. This Article examines the concept of cruelty as enshrined in the Eighth Amendment Punishments Clause and suggests that the Supreme Court ought to focus on this elusive concept through its independent judgment analysis. The Article emphasizes that such an independent judgment focus on cruelty should be constrained by specific, identified factors and that these factors should go beyond examining the penological purposes of punishment. The Article asserts that motive and the nature and quality of a punishment are central to the concept of cruelty and suggests that a more nuanced understanding of punishment rationales, supplemented by factors focused on elements such as the bloody or lingering nature of the punishment, is necessary in properly determining whether a punishment is cruel under the Punishments Clause.
Keywords: Eighth Amendment, Punishments Clause, cruel and unusual, Kennedy v. Louisiana, retribution, retributivism, deterrence, deterrent, roper v. simmons, Baze v. Rees, Ford v. Wainwright, Stanford v. Kentucky, Penry v. Lynaugh, punishmemt. sentencing
Working Paper Serie