“Excessive bail shall not be required,
nor excessive fines imposed, nor cruel
and unusual punishments inflicted.”
-8th Amendment
United States Constitution
The
th
8
Amendment
 The 8th Amendment was adopted, as part of the
Bill of Rights in 1791.
 It is almost identical to a provision in the English
Bill of Rights of 1689, in which Parliament
declared, "as their ancestors in like cases have
usually done...that excessive bail ought not to be
required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.”
Cruel and Unusual Punishments
 According to the Supreme Court, the 8th Amendment
forbids some punishments entirely, and forbids some
other punishments that are excessive when
compared to the crime, or compared to the
competence of the perpetrator.
Louisiana ex rel. Francis v.
Resweber (1947)
 The Supreme Court assumed that the Cruel and
Unusual Punishments Clause applied to the states
through the Due Process Clause of the Fourteenth
Amendment.
Punishments Forbidden
Regardless of the Crime
 In Wilkerson v. Utah (1878), the Supreme Court
commented that drawing and quartering, public
dissecting, burning alive, or disemboweling would
constitute cruel and unusual punishment regardless of
the crime.
 In Skinner v Oklahoma (1942) the Supreme Court ruled
that forced sterilization for crimes was unconstitutional –
continued until the 1960s for the mentally ill
Trop v. Dulles (1958)
 Justices held that it was cruel and unusual
punishment to make loss of citizenship the penalty
for desertion.
 The meaning of the 8th amendment could be
discerned from evolving standards of decency.
Evolution of Decency
 "The [Eighth] Amendment must draw its meaning from the
evolving standards of decency that mark the progress of a
maturing society.“
 Subsequently, the Court has looked to societal
developments, as well as looking to its own independent
judgment, in determining what are those "evolving standards
of decency”.
 Over time, our definition of decency has changed.
 The Court has then applied those standards not only to say
what punishments are inherently cruel, but also to say what
punishments that are not inherently cruel are nevertheless
cruelly disproportionate to the offense in question.
Juveniles and life sentences
 Graham v Florida (2010) The Supreme Court ruled that
juveniles cannot receive true life sentences without the
possibility of parole for crimes that are not homicide
 The majority decision noted that almost no countries
have true life sentences for juveniles and few states
have juveniles in jail indefinitely
Proportionality
 In Rummel v. Estelle (1980), the Court upheld a life sentence
with the possibility of parole for fraud crimes totaling $230.
 In Harmelin v. Michigan (1991), the Court upheld a life
sentence without the possibility of parole for possession of
672 grams of cocaine.
 In Lockyer v. Andrade (2003), the Court upheld a 50 years to
life sentence with the possibility of parole imposed under
California's three strikes law when the defendant was
convicted of shoplifting videotapes worth a total of about
$150.
Death Penalty
 The provision of the 8th Amendment provides a major
constitutional source for challenging the death
penalty.
 The death penalty can only be issued by a jury, not a
judge or attorney.
 “Death is different”
Death penalty
 Furman v Georgia (1972) – Death penalty is
unconstitutional if it is inconsistently enforced
 Gregg V. Georgia (1976) Reinstituted the death
penalty for murder if carefully employed.
 1) bifurcated proceeding where the trial and
sentencing are conducted separately
 2)specific jury findings as to the severity of the crime
and the nature of the defendant
Death Penalty for Rape
 In Coker v. Georgia (1977), the Court declared that the
death penalty was unconstitutionally excessive for rape
and, by implication, for any crime where a death does
not occur.
 In Kennedy v Louisiana (2008) The Court extended the
reasoning of Coker by ruling that the death penalty was
excessive for child rape "where the victim’s life was not
taken.“
Death penalty limitations
 The Supreme Court declared executing the mentally
handicapped as unconstitutional in Atkins v. Virginia
(2002)
 Executing people who were under age 18 at the time
the crime was committed was ruled unconstitutional
in Roper v. Simmons (2005)
In Oregon and in the USA today
Oregon
 Legal in Oregon
 outlawed between 1914 and 1920, again between 1964
and 1978, and then again between a 1981 Oregon
Supreme Court ruling and a 1984 ballot measure
 Since 1904, about 60 individuals have been executed in
Oregon
 Thirty-two people are on Oregon's death row as of 1
July 2009
 Last person killed way in 1997, after he dropped all
appeals
 Death by lethal injection
Lethal injection
 Kills the person by first
putting the person to
sleep, then stopping the
breathing and heart in
that order
 Supporters argue that the
method less painful and
more efficient
 Supreme Court has upheld
the method in 2009
USA – Lethal Injection
USA – Other forms
Gas Chamber
Firing Squad
Electric Chair
USA - Numbers
 About 13,000 put to death since colonial times
 Texas holds the record for the largest number of
executions since the death penalty was reinstated in
1976 – 456 Since 1982
 Virginia has executed a larger percentage of its
population than any other state over 1 million in
population.
 88% of the world’s executions (killing 1,252) in 2007
were done in China, Iran, Pakistan, Saudi Arabia, and
the United States.
 All of Europe has banned the death penalty