Cruel and Unusual Punishments

The Issue:  What constitutes a "cruel and unusual punishment" within the meaning of the Eighth Amendment?

What exactly is a "cruel and unusual punishment" within the meaning of the Eighth Amendment?  Did the framers intend only to ban punishments-- such as "drawing and quartering" a prisoner, or having him boiled in oil or burned at the stake--that were recognized as cruel at the time of the amendment's adoption?  Or did they expect that the list of prohibited punishments would change over time as society's "sense of decency" evolved?  One clue to the expectations of the framers comes from the debates of the First Congress that proposed the Eighth Amendment.  On the floor of the House, Representative Livermore complained about the vagueness of the amendment's language: "It is sometimes necessary to hang a man, villains often deserve a whipping, and perhaps having their ears cut off, but are we in the future to be prevented from inflicting those punishments because they are 'cruel'?"  Despite Livermore's objections, the vague language, subject to new interpretation over time, was left unchanged and the amendment ratified.  The Supreme Court in the 1958 case of Trop v Dulles, expressly endorsed the view that what are prohibited "cruel and unusual punishments" should change over time, being those punishments which offend society's "evolving sense of decency."

The cases on this page suggest the wide variety of questions raised by the Eighth Amendment. 

In Frances v Resweber, the Court considers whether a state can put a condemned man on an electric chair a second time, after sending a non-lethal bolt of electricity through him in its first attempt.  By a 5 to 4 vote, the Court in Frances permits the second execution, with the majority concluding that the "cruelty" of the punishment at issue should not be measured by what happened in the past or the mental anguish the prisoner might feel as he awaits his second date with the chair.  The four dissenters, however, contended that the sequence of events was relevant, and that no one would doubt but that a punishment that consisted of two jolts of electricity weeks apart would be cruel.

In the  1970s, the Court addressed the constitutionality of the death penalty itself, finally concluding that, with proper procedures in place, the penalty was constitutional.  (For a discussion of those cases, see the Death Penalty page on this site.)

Ingraham v Wright considered the use of corporal punishment in Florida public schools.  In the case under consideration, one students was subjected to such a severe beating with a wooden paddle as to cause hematoma requiring medical attention and another was deprived of the use of his arm for a week.  By a 5 to 4 vote, however, the Court found that the punishment was not a violation of the Eighth Amendment because, it said, the framers were concerned solely with punishments in the criminal justice context and would not have intended the amendment's provisions to apply to discipline in the public schools.  The four dissenters disagreed, arguing that nothing in the text of the amendment suggests the limitation found by the majority.

Does the Eighth Amendment contain a requirement that punishments be somewhat proportional to crimes?  Would it be unconstitutional to give a life sentence for double-parking?  What about a life sentence for possession of cocaine?  That letter question was the issue presented in Harmelin v Michigan (1991), in which the Court (5 to 4) upheld the sentence of life imprisonment for the first-time offense of possession of cocaine (albeit a large amount of cocaine).  Two justices (Scalia and Rehnquist) argued that the Eighth Amendment did not address the proportionality of punishments at all.  Four justices would have reaffirmed an earlier decision that adopted a three-prong test to determining disproportionate punishments and would have reversed Harmelin's conviction.  A key concurring opinion signed by three justices argued that grossly disproportionate punishments did violate the Eighth Amendment, but offered a test that would only rarely allow courts to reach such conclusions. 

In Hudson v McMillian (1992) the Court considered whether the beating by prison guards of a handcuffed inmate at Louisiana's Angola prison violated the inmate's Eighth Amendment rights.  Voting 7 to 2, the Court found a violation of the cruel and unusual punishment clause even though the inmate suffered no permanent injuries or injuries that required hospitalization.  In so holding, the Court rejected the lower court's argument that only beatings that caused "significant injuries" (read as injuries that were permanent or required hospitalization) rose to the level of Eighth Amendment violations.  In dissent, Justices Thomas and Scalia argued (controversily) that the Eighth Amendment was intended to reach beatings by guards at all--rather only judicially-imposed sentences.

In Roper v Simmons (2005) the Court considered whether it was cruel and unusual punishment to execute a prisoner for a crime he committed when he was a minor.  In previous decisions, the Court had found it unconstitutional to execute persons who were less than 16 at the time of their crime, but had upheld executions of those 16 and 17 at the time of their crimes.  (The Court had also, in 2002, held it to be a violation of the Eighth Amendment to execute mentally retarded persons.)   Voting 5 to 4, the Court in Roper cited recent evidence to conclude that the execution of persons who were minors at the time of their crimes now violated "evolving standards of decency" and, hence, the Eighth Amendment.

Supreme Court Rules that  Life Without Parole for Minors Violates the Eighth Amendment

In Graham v. Florida (2010),  the Supreme Court, by a vote of 5 to 4, ruled that the Eighth Amendment does not permit sentences of life without possibility of parole for minors who commit nonhomicide crimes.  Justice Kennedy, in his opinion for the Court, wrote:

Terrance Graham's sentence guarantees he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes. The State has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law. This the Eighth Amendment does not permit.

Chief Justice Roberts concurred on the narrower grounds that a proportionality review made the sentence unconstitutional for the minor whose case was before the Court.  Scalia, Thomas, and Alito dissented.

The Eighth  Amendment:
Excessive bail shall not be required,
 nor excessive fines imposed,
 nor cruel and unusual punishments inflicted. 

Frances v Resweber (1947)
Ingraham v Wright (1977)
Harmelin v Michigan (1991)
Hudson v McMillian (1992)
Roper v Simmons (2005)

Christopher Simmons.
Simmons hog-tied a neighbor girl and threw her off a bridge in 1993 when he was 17. 
His death sentence was reversed by the Supreme Court in 2005.


1. Would the majority in Francis uphold a state law that said prisoners should be given a sharp jolt of electricity, then sent back to their cells to await execution four weeks later?  Would the majority have voted the same way if Louisiana botched the execution not one, but five times?
2.  The majority in Ingraham effectively inserts the word "criminal" before the word "punishment" in the Eighth Amendment.  Was it justified in doing so?  If the historical record points one way, and the text points another, what source of constitutional interpretation should trump the other?
3.  When are punishments so disproportionate to crimes as to constitute violations of the Eighth Amendment?  Would it be unconstitutional to impose life imprisonment for the first-time possession of a small amount of marijuana?  For a large amount of marijuana?  For prostitution?  How should the test be framed?
4.  What should be the test for determining when prison conditions constitute cruel and unusual punishments?  Is a "deliberate indifference" standard appropriate?  Is it unconstitutional to confine an inmate to a four-by-six foot cell?  To double-cell an inmate with a chain smoker?  To keep cells at 55 degrees?
5.  Does the text of the Constitution make clear that the death penalty is constitutional?  What should be made of the Fifth's Amendment's reference to "capital crimes" or twice putting "life or limb" in jeopardy?
6.  Is the application of the death penalty in this country so rare and random as to offend "evolving standards of decency"?  Might it in the future?
7.  The Court in Roper said it is unconstitutional to execute persons who were 17 at the time of their crimes?  Are persons who are 18 much more responsible than 17-year-olds?  Why draw the line at 17?

Louisiana's Angola prison has long been the source of prisoner blues.  In 1992, Keith McMillan, a handcuffed inmate who was badly beaten by guards at Angola, won a victory at the Supreme Court that allowed him to pursue his action for damages. The Court said his beating constituted cruel and unusual punishment.

Death Penalty: Cases and Materials

Executing Minors: Roper v Simmons (2005)









The Court, on a 5 to 4, vote held that the execution of criminals for crimes commited when they were under 18 years of age offended "evolving standards of decency," and hence constituted "cruel and unusual punishment" in violation of the Eighth Amendment.

Beatings by Prison Guards: Hudson v McMillian (1992)










The Court, on a 7 to 2 vote, reversed a Court of Appeals decision that held that beatings of prisoners by prison guards constitute cruel and unusual punishment only when the beating leaves the prisoner with a "significant injury," which had been defined as one leaving a permanent injury or requiring hospitalization.  The Court held that a beating of a Louisiana prisoner (which left loose teeth and a cracked dental plate) constituted cruel and unusual punishment, as would any "wanton and unnecessary infliction of pain."  The two dissenters thought beatings by guards are not covered by the Eighth Amendment protections.

Exploring Constitutional Conflicts Homepage