The Cruel and Unusual Punishments Clause

. . . nor [shall] cruel and unusual punishments [be] inflicted.

—John F. Stinneford

Introduction

The Supreme Court has had difficulty interpreting and applying the Cruel and Unusual Punishments Clause in a consistent manner. The meaning of “unusual” and the role it is supposed to play in interpreting the clause have been obscure. An objective baseline for determining whether a given punishment is so harsh as to be “cruel and unusual” has been elusive. From the late 1950s through the first part of the twenty-first century, the Court’s decisions refused to rely upon the original meaning of the Clause, asking instead whether a punishment violated the “evolving standards of decency that mark the progress of a maturing society.”¹ The Roberts Court signaled that it would rely on “the original and historical understanding of the Eighth Amendment.”² Extensive evidence of the clause’s original meaning has recently emerged.³ Courts have decided cases involving both substantive and procedural limits on imposition of the death penalty, prison sentences and prison conditions, and punishment for “status” crimes.

The Original Meaning of “Cruel and Unusual Punishment”

The historical evidence reveals that “cruel” originally meant “unjustly harsh” and that “unusual” originally meant “contrary to long usage.” Thus, “cruel and unusual” originally meant “unjustly harsh in light of longstanding prior practice.”⁴ This phrasing reflected the belief, shared by English and American legal thinkers and judges, that the longstanding customs of a free people are the most reliable way to determine whether a punishment comports with natural principles of justice.

These customs were embodied primarily in the common law, otherwise called the law of “long use and custom.”⁵ For example, Edward Coke praised the customary nature of the common law, which “by many successions of ages” had “beene fined and refined by an infinite number of grave and learned men, and by long experience growne to such a perfection.”⁶ Similarly, Sir William Blackstone wrote that “our lawyers are with justice so copious in their encomiums on the reason of the common law; that they tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law.”⁷ On the other hand, new practices that violated rights established through the “long usage” of the common law were considered unjust and unconstitutional.⁸ Thus, a punishment that was significantly harsher than longstanding prior practice would permit would be deemed cruel and unusual.

History Before 1787

The phrase “Cruel and Unusual Punishments” first appeared in the English Bill of Rights (1689), which provided in part “[t]hat excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.”⁹

In 1690, a disgraced Anglican clergyman named Titus Oates filed a petition in Parliament seeking release from a judgment that had been imposed on him five years earlier for his notorious acts of perjury. Oates had made up a false story about a “popish,” or Catholic plot to kill the king and had testified in trials against the “conspirators.” His testimony resulted in the execution of numerous innocent people. When the perjury was discovered, Oates was tried and convicted. Because perjury was not a felony, he could not be executed for his crime. Instead, the court sentenced him to two serious floggings, a large fine, life imprisonment, four appearances in the pillory per year, and defrocking.

In response to Oates’s petition, a majority of both houses of Parliament agreed that his punishments violated the “cruell and unusuall punishments” clause of the new Bill of Rights. These punishments were deemed “extravagant,” “exorbitant,” there was “no precedent to warrant” them, and they were “contrary to law and ancient practice.”¹⁰ Nonetheless, the House of Lords refused to lift the judgment for “so ill a man” as Titus Oates. The parliamentary debates about Oates show that the primary reason his punishment was cruel and unusual was that it was unprecedentedly harsh for the crime of perjury. In other words, it ran contrary to the long usage of the common law.

“Cruel and Unusual” in America

The Founding generation in America was, if anything, more devoted than the English to the idea that common-law rights, established through long usage, were inviolable. The American Revolution itself was based on the idea that neither King nor Parliament had the authority to violate fundamental common-law rights. The Declaration of Independence invoked the right to jury trial in the vicinage of the offense and the right not to be taxed without representation in Parliament. In the wake of the Revolution, the newly formed states adopted written constitutions designed in part to preserve the common-law rights of citizens. The Virginia constitution, for example, included a Declaration of Rights, written largely by George Mason, that prohibited (among other things) cruel and unusual punishments.¹¹

Adoption of the Eighth Amendment

The U.S. Constitution, as initially proposed, did not contain a Bill of Rights, although certain common-law rights were built into the document’s text. George Mason, as a delegate to the Constitutional Convention, worried that the lack of common-law limitations on federal power would allow Congress to create “new crimes, inflict unusual and severe punishments, and extend their powers.”¹² He ultimately refused to vote for the Constitution on the ground that it contained “no Declaration of Rights . . . . Nor are the people secured even in the enjoyment of the benefit of the common law.”¹³

Mason’s concerns were taken up by the Anti-Federalists in the various state conventions. They argued repeatedly that because Congress was not obligated to respect rights established through the “long usage” of the common law, it might innovate in a manner destructive of individual liberty. For example, Abraham Holmes in Massachusetts and Patrick Henry in Virginia argued that Congress might discard the common-law prohibition of torture and adopt practices like those employed in continental Europe.¹⁴ Henry also worried that Congress would impose “the most cruel and ignominious” punishments on the militia in order to convert it into a tool of despotism.¹⁵

During the First Congress, these protests led Representative James Madison to propose a Bill of Rights that was designed primarily to protect longstanding common-law rights, including by prohibiting cruel and unusual punishments.¹⁶ There was very little discussion of this prohibition. Representatives Samuel Livermore of New Hampshire and William Smith of South Carolina expressed concern that the cruel and unusual punishments clause was “indefinite.”¹⁷ But these comments did not provoke any further discussion. The provision was approved by Congress and ratified by the states.¹⁸

The Clause and the Roberts Court

Bucklew v. Precythe (2019) signaled that the U.S. Supreme Court would rely on “the original and historical understanding of the Eighth Amendment,” but the Court did not fully explicate its understanding of the clause’s original meaning.¹⁹ For six decades before Bucklew, the Court followed an explicitly anti-originalist jurisprudence. A plurality had held in Trop v. Dulles (1958) that punishments would be judged not in light of the original meaning of the clause, but according to “evolving standards of decency that mark the progress of a maturing society.”²⁰ Similarly, Robinson v. California (1962) relied on “contemporary” standards to find that a state-imposed punishment violated the Cruel and Unusual Punishments Clause as incorporated into the Due Process Clause of the Fourteenth Amendment.²¹

The original meaning of the clause does contain a principle of legal development, albeit one that operates very differently than the evolving standards of decency test. If a once-traditional punishment falls out of usage for a significant period of time, it might become unconstitutional.²² For example, the First Congress authorized the death penalty for counterfeiting, but this punishment for this offense has arguably become unconstitutional because it fell out of usage a very long time ago. Similarly, new punishments might become part of the tradition if they establish universal reception over a long period of time. For example, prison was a new form of punishment at the time of the Founding but has been used universally for nearly two centuries. It is now part of the tradition.²³

Substantive and Procedural Death Penalty Doctrine

An infinitesimally small percentage of felony offenders are subject to the death penalty. Yet the death penalty still has received the lion’s share of attention in recent decades from both the Supreme Court and the media.²⁴

The Supreme Court has developed both a “substantive” and a “procedural” approach to the Eighth Amendment. Under the substantive approach, the Court has limited application of the death penalty based on a purported current societal consensus against it for certain crimes. For example, Coker v. Georgia (1977) found that the death penalty could not be imposed for simple rape.²⁵ Kennedy v. Louisiana (2008) barred the death penalty for aggravated rape of a child.²⁶ Enmund v. Florida (1982) prohibited executing defendants for certain types of felony murder.²⁷

Similarly, the Court has ruled that the Eighth Amendment bars executing certain classes of offenders. Roper v. Simmons (2008) held that the death penalty could not be imposed on minors who commit murder.²⁸ Atkins v. Virginia (2002) applied the same rule for the mentally disabled.²⁹ These holdings are based directly on the anti-originalist evolving standards of decency test.

Under its procedural doctrine, the Court has sought to limit “arbitrary” imposition of the death penalty by requiring that certain procedures be followed at sentencing. Woodson v. North Carolina (1976) declared unconstitutional state statutes mandating automatic imposition of the death penalty for certain crimes.³⁰ The Court also held that juries cannot be given “unbridled discretion” over death penalty decisions and must instead be given guidance.³¹ Under modern practice, juries must find the existence of certain statutory aggravating factors before imposing the death penalty.³²

On the other hand, Lockett v. Ohio (1978) held that death penalty-eligible defendants have a right to “individualized sentencing” and that statutes precluding consideration of “relevant mitigating factors” are unconstitutional.³³ But this principle is not unlimited. United States v. Tsarnaev (2022), for example, ruled that the government “may enact reasonable rules governing whether specific pieces of evidence are admissible.”³⁴ As a result, states may exclude mitigating evidence that does not comply with such rules.

The Court has not made any effort to reconcile these procedural cases with the original meaning of the Cruel and Unusual Punishments Clause. A natural home for this line of cases would seem to be the Due Process Clause, at least under modern doctrine.

Methods of Execution

The Court has scrutinized methods of execution as well. Glossip v. Gross (2015) ruled that a method of execution can be found unconstitutional only if it creates “a substantial risk of severe pain.”³⁵ The Court also imposed obstacles to challenging a given method of execution that appear to be inconsistent with the original meaning of the clause. Specifically, Glossip held that a prisoner who wishes to challenge a given method of execution “must identify an alternative that is ‘feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.’”³⁶ There is no textual or historical basis for this requirement. Bucklew suggested that a prisoner may be required to demonstrate that the government “intended its method to inflict [unnecessary] pain.”³⁷ This possible requirement also lacks a solid foundation in constitutional text or history.³⁸

Prison Sentences

Does the Eighth Amendment also limit prison sentences? Would a prison sentence be unconstitutional because it is grossly disproportionate to the offense? Could the state impose a life sentence for a parking violation? The Supreme Court has not taken a consistent position on this issue. Rummel v. Estelle (1980) suggested that “overtime parking” could not be made “a felony punishable by life imprisonment,”³⁹ and Solem v. Helm (1983) held that the clause contains a proportionality requirement as part of its original meaning.⁴⁰ But Ewing v. California (2003) deferred to legislative judgments as to proportionality of criminal sentences so strongly as to make proportionality review seemingly illusory.⁴¹ Nonetheless, Miller v. Alabama (2012) held that a mandatory life sentence without possibility of parole for juvenile offenders would be unconstitutional.⁴² The Court cited the risk that such a sentence would be disproportionate to the minor’s culpability.

In short, there has been little rhyme or reason to the Supreme Court’s approach to proportionality. The Court was torn between the obvious fact that a given punishment might be so disproportionate to the offense as to be cruel and unusual and the worry that courts lack a neutral principle of adjudication for deciding proportionality cases.

Evidence from the Founding era shows that the original meaning of the clause does prohibit cruelly disproportionate punishments.⁴³ The clause also provides a neutral principle of adjudication: In determining whether a punishment is cruelly disproportionate to the offense, the Court should compare it to punishments traditionally given for the same or similar offenses. A punishment that is significantly harsher than those traditionally given for the offense may be held cruel and unusual.

Prison Conditions

Estelle v. Gamble (1976) applied the Cruel and Unusual Punishments Clause to prison conditions.⁴⁴ The state cannot impose an “unnecessary and wanton infliction of pain” if prison officials displayed deliberate indifference to that pain.⁴⁵ Under Farmer v. Brennan (1994), a claim of being subjected to inhuman prison conditions can succeed only if a prison official displays a culpable state of mind amounting at least to recklessness.⁴⁶ Under the original meaning of the clause, prison conditions can be found cruel and unusual,⁴⁷ but because “cruel” refers to the harshness of the conditions and not government officials’ state of mind, the recklessness requirement appears to be unwarranted.⁴⁸

Punishment for Status

Finally, Robinson v. California (1962) held that it was unconstitutional to punish a defendant for the “status” of being addicted to narcotics.⁴⁹ The opinion was based on the evolving standards of decency test rather than the original meaning of the Clause. Indeed, the decision contained virtually no legal reasoning of any kind. City of Grants Pass v. Johnson (2024) refused to extend Robinson’s holding to anti-camping ordinances that respondents claimed imposed punishment based on the “status” of homelessness.⁵⁰ The constitutional status of Robinson itself was left unsettled.

Open Questions

• How can the Supreme Court reconcile its older anti-originalist precedents with the newer originalist precedents? What would an originalist Cruel and Unusual Punishments Clause jurisprudence look like?
• Is long-term solitary confinement a cruel and unusual punishment? This practice was used in the nineteenth century but was abandoned because of high rates of insanity, self-harm, and suicide. Justice Clarence Thomas has argued that prison conditions cannot be considered a punishment because they were not ordered by a judge as part of the sentence,⁵¹ but there is substantial evidence to the contrary.⁵²
• Does the Cruel and Unusual Punishments Clause cover only punishments inflicted as the result of a criminal conviction, or does it also cover other kinds of government-imposed coercion such as extra-judicial torture?

1. Trop v. Dulles, 356 U.S. 86, 101 (1958). ↩︎
2. Bucklew v. Precythe, 587 U.S. 119, 136 (2019). ↩︎
3. John Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739 (2008); John Stinneford, The Original Meaning of “Cruel,” 105 Geo. L. J. 441 (2017); John Stinneford, Rethinking Proportionality Under the Cruel and Unusual Punishments Clause, 97 Va. L. Rev. 899 (2011); John Stinneford, Death, Desuetude, and Original Meaning, 56 Wm. & Mary L. Rev. 531 (2014); John Stinneford, Experimental Punishments, 95 Notre Dame L. Rev. 39 (2019) ↩︎
4. Stinneford, Cruel, supra at 464. ↩︎
5. 1 The Works of James Wilson 186 (James DeWitt Andrews ed., 1896). ↩︎
6. Edward Coke, 1 Institutes of the Law of England § 138 (15th ed. 1794). ↩︎
7. 1 Blackstone 70. ↩︎
8. Stinneford, Unusual, supra at 1783–85. ↩︎
9. 1 W. & M., ch. 2, sess. 2 (1689). ↩︎
10. 10 H.C. Jour. 228, 249 (1689). ↩︎
11. Va. Const. of 1776, § 9. ↩︎
12. 2 Farrand’s 637. ↩︎
13. Id. at 649. ↩︎
14. 2 Elliot’s 111; 3 Elliot’s 447–48. ↩︎
15. 3 Elliot’s 412. ↩︎
16. 1 Annuals of Cong. 452 (1789); Stinneford, Unusual, supra at 1808. ↩︎
17. 1 Annals of Cong. 782 (1789). ↩︎
18. Id. at 783; Stinneford, Unusual, supra at 1809. ↩︎
19. 587 U.S. at 136. ↩︎
20. 356 U.S. 86, 101 (1958). ↩︎
21. 370 U.S. 660, 666 (1962). ↩︎
22. Stinneford, Desuetude, supra. ↩︎
23. Stinneford, Experimental, supra. ↩︎
24. Stinneford, Proportionality, supra at 902–03. ↩︎
25. 433 U.S. 584 (1977). ↩︎
26. 554 U.S. 407, 441–45 (2008). ↩︎
27. 458 U.S. 782 (1982). ↩︎
28. 543 U.S. 551 (2005). ↩︎
29. 536 U.S. 304 (2002). ↩︎
30. 428 U.S. 280, 301 (1976). ↩︎
31. Id. at 302. ↩︎
32. Id. at 303–04. ↩︎
33. 438 U.S. 586, 602–05, 608 (1978). ↩︎
34. 595 U.S. 302, 319 (2022). ↩︎
35. 576 U.S. 863, 877 (2015) (quoting Baze v. Rees, 553 U.S. 35, 51 (2008) (plurality opinion)). ↩︎
36. Id. (quoting Baze, 553 U.S. at 52). ↩︎
37. Bucklew, 587 U.S. at 136. ↩︎
38. Stinneford, Cruel, supra. ↩︎
39. 445 U.S. 263, 274 (1980). ↩︎
40. 463 U.S. 277, 285–87 (1983). ↩︎
41. 538 U.S. 11, 24 (2003) (plurality opinion). ↩︎
42. 567 U.S. 460 (2012). ↩︎
43. Stinneford, Proportionality, supra. ↩︎
44. 429 U.S. 97, 104 (1976) (citing Gregg v. Georgia, 428 U.S. 153, 173 (1976)). ↩︎
45. Id. ↩︎
46. 511 U.S. 825, 837 (1994). ↩︎
47. Stinneford, Cruel, supra. ↩︎
48. Id. ↩︎
49. 370 U.S. 660 (1962). ↩︎
50. 603 U.S. 520 (2024). ↩︎
51. Helling v. McKinney, 509 U.S. 25, 37–42 (1993) (Thomas, J., dissenting). ↩︎
52. John Stinneford, Is Solitary Confinement a Punishment?, 115 Nw. U. L. Rev. 9 (2020). ↩︎