DEFINING CRUEL AND UNUSUAL

PUNISHMENT IN TERMS OF THE DEATH

PENALTY
Lauren Kiosterud
Arizona State University
 ABSTRACT

This presentation argues the definition of “cruel and unusual

punishment” from the 8th Amendment of the Constitution in terms of
Capital Punishment within the United States. This topic has found to
be of great interest among the American population. The Constitution
can be very subjective, and people can interpret it in different ways.
This presentation will form a definition of what “cruel and unusual
punishment” is supposed to mean, based off of the Founding Fathers’
definition and how it is widely used and interpreted today. Different
scholarly opinions will be examined to form a consensus on a
definition that satisfies many different beliefs.
8 TH AMENDMENT OF THE
CONSTITUTION

• The 8th Amendment of the Constitution states:

• “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.”
• The importance of defining the 8th Amendment:
• Common understanding and less confusion.
• It was written in 1791 and definitions may change over time.
• Separation among the courts, “…difference of interpretation intersects
these divergent views and separates the courts which confine the words
to the kind or mode of punishment” (What is cruel, 1910). This means
that depending on which court you are in, you may get a different
sentence for the same crime due to the individual interpretation of the
8th Amendment.
 WHAT IS THE DEATH PENALTY?

• Capital punishment, or death penalty, is practiced within the United States government to inflict punishment
upon those who commit the most horrendous of crimes, such as murder.
• The Supreme Court has ruled that the death penalty alone is not a violation of the 8th Amendment. However,
different circumstances show to have an effect on the Constitutionality of capital punishment (Death penalty,
n.d.).
• The Supreme Court has laid out a variety of guidelines to determine when this punishment is deemed
Constitutional.
• The punishment must be proportional to the crime, a jury must be present and in agreement, certain classes of people are
exempt from this punishment, and the method of execution must be humane (Death penalty, n.d.).
 DEFINING CRUEL AND UNUSUAL

• Cruel by definition is “willfully causing pain or suffering to others, or

feeling no concern about it.”
• This definition is very broad and subjective which can cause many issues
such as specifics on imposing punishments. Where is the line drawn?
• Unusual by definition is, “not habitually or commonly occurring or
done.”
• What classifies something to be “unusual”? Can something be normal to
someone and unusual to someone else?
• Issues arise when trying to define either of these terms because they
are both up to one’s interpretation.
• “The Court admitted the difficulty in trying to define the exact meaning of
"cruel and unusual" (Cruel and unusual, 1972).
 SUPREME COURT PRECEDENT CASES

• 1972 was a remarkable year for the death penalty following the 8th
Amendment. Three major Supreme Court cases were granted certiorari
when these men were sentenced to death, Furman v. Georgia, Jackson v.
Georgia, and Branch v. Texas. Furman was convicted of murder and Jackson
and Branch were convicted of rape (Cruel and unusual, 1972).
• All cases were granted certiorari for various reasons, but all asked:
• Is the punishment deemed necessary? Did the punishment fit the crime? Were all
parties found completely guilty with no questions asked?
• These cases proved that the 8th Amendment is solely based on morality, which
can be very subjective.
SUPREME COURT CASES CONT.

• Over time, precedent Supreme Court cases have shaped the laws
of the death penalty to make it as Constitutional as possible, based
on a variety of beliefs as well as the Supreme Court’s judgement.
There are many others, but a few major cases are listed below.
• Coker v. Georgia (1977): rape of an adult woman does not qualify for
capital punishment
• Enmund v. Florida (1982): unintentional murder does not qualify for the
death penalty
• Penry v. Lynaugh (1989): those with “mental retardation” do not qualify
for the death penalty
• Stanford v. Kentucky (1989): minors are not eligible for the death
penalty
• Kennedy v. Louisiana (2008): rape of a child in which the child did not
die does not qualify for the death penalty (Summaries, n.d.).
 METHOD OF EXECUTION

• It is commonly agreed upon that torture of those persecuted is a violation

of the 8th Amendment. The method of execution seems to be a common
concern in abiding by the Constitution.
• Currently, the method of execution is by lethal injection. Which from the
outside seems to be the most humane circumstance, however, there are
many issues with this approach.
• First, the drugs used are not administered by the FDA.
• There is no medical professional on scene to ensure that everything goes
correctly.
• Many cases have shown to which the body is resistant and fighting the drugs or
the anesthetics wearing off, causing a lot of pain and suffering to the individual
(Greenemeier, 2010).
• Off of the standard set by the individuals suffering, a fire squad, hanging, or
beheading would cause a more immediate death to the individual and
lower rates of failure. Why are these methods not practiced? Is it because
they are more gory and traumatic to those watching? Is the United States
following this method based on Constitutionality or public approval?
 CONCLUSION

• With the several definitions and usage of “cruel and

unusual punishment” it has shown to be rather hard to
define.
• The overall consensus of cruel and unusual punishment in
today’s society in terms of the death penalty is:
• The 8th Amendment gives an overall foundation to the means
of punishment and has been solely based on morality and
interpretation. The death penalty is to be considered cruel and
unusual if it is deemed unnecessary by a jury or unfair to the
crime or the individual; all punishments should be carried out
in a humane and civil manner, otherwise it is a violation to the
8th Amendment of the Constitution.
 REFERENCES

• Cruel and Unusual Punishment: Death Penalty Cases: Furman v. Georgia, Jackson v. Georgia, Branch v.
Texas, 408 U.S. 238 (1972), 63 J. Crim. L. Criminology & Police Sci. 484 (1972). Retrieved from
https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=5815&context=jclc
• Death penalty. (n.d.). Cornell Law School. Retrieved from https://www.law.cornell.edu/wex/death_penalty
• Greenemeier, L. (2010). Cruel and unusual?: Is capital punishment by lethal injection quick and painless?
Scientific American. Retrieved from https://www.scientificamerican.com/article/capital-punishment-by-
lethal-injection/
• Summaries of key supreme court cases related to the death penalty. (n.d.) Capital Punishment in Context.
Retrieved from https://capitalpunishmentincontext.org/resources/casesummaries
• What is cruel and unusual punishment. (1910). Harvard Law Review, 24(1), 54-56. doi:10.2307/1324654.
Retrieved from http://www.jstor.org.ezproxy1.lib.asu.edu/stable/1324654?sid=primo&origin=crossref