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Cruel and unusual punishment is a phrase incommon law describingpunishment that is considered unacceptable due to thesuffering,pain, orhumiliation it inflicts on the person subjected to the sanction. The precise definition varies by jurisdiction, but typically includes punishments that are arbitrary, unnecessary, or overly severe compared to the crime.
The words "cruel and unusual punishment" (the actual words were firstly "illegal and cruel Punishments" and secondly "cruel and unusual Punishments") were first used in theEnglishBill of Rights 1689.[1][2] They were later also adopted in the United States by theEighth Amendment to the United States Constitution (ratified 1791) and in theBritish Leeward Islands (1798). Very similar words, "No one shall be subjected totorture or tocruel, inhuman or degrading treatment or punishment", appear in Article 5 of theUniversal Declaration of Human Rights adopted by theUnited Nations General Assembly on December 10, 1948. The right under a different formulation is also found inArticle 3 of the European Convention on Human Rights (1950) and in Article 7 of theInternational Covenant on Civil and Political Rights (1966). TheCanadian Charter of Rights and Freedoms (1982) also contains this fundamental right insection 12 and it is to be found in Article 4 (quoting the European Convention verbatim) of theCharter of Fundamental Rights of the European Union (2000). It is also found in Article 16 of theConvention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984), and in Article 40 of theConstitution of Poland (1997).[3] TheConstitution of the Marshall Islands, in the sixth section of its Bill of Rights (Article 2), prohibits "cruel and unusual punishment", which it defines as: thedeath penalty; torture; "inhuman and degrading treatment"; and "excessive fines or deprivations".[4]
TheEighth Amendment to the United States Constitution states that "cruel and unusual punishments [shall not be] inflicted." The general principles that theUnited States Supreme Court relied on to decide whether or not a particular punishment was cruel and unusual were determined byJustice William Brennan.[5] InFurman v. Georgia,408 U.S.238 (1972), Justice Brennan concurring wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."
And he added: "The function of these principles, after all, is simply to provide [the] means by which a court can determine whether [the] challenged punishment comports with human dignity. They are, therefore, interrelated, and, in most cases, it will be their convergence that will justify the conclusion that a punishment is 'cruel and unusual.' The test, then, will ordinarily be a cumulative one: if a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes."
Continuing, he wrote that he expected that no state would pass a law obviously violating any one of these principles, so court decisions regarding the Eighth Amendment would involve a "cumulative" analysis of the implication of each of the four principles. In this way, the United States Supreme Court "set the standard that a punishment would be cruel and unusual [if] it was too severe for the crime, [if] it was arbitrary, if it offended society's sense of justice, or if it was not more effective than a less severe penalty."[6]
There is much discussion as to whethercapital punishment is considered cruel and unusual. Common arguments are that capital punishment is more expensive when factoring inappeals versuslife in prison, and that the government has been wrong before on death penalty cases (therefore, the government could be wrong again, and the government ought not have the authority to end a life). These two arguments alone may or may not qualify under the tests the government puts forth, which could also be considered arbitrary itself, especially if society is not informed enough on these considerable facts. For most of recorded history, capital punishments were often deliberately cruel, painful, and/or degrading. Severe historical execution methods include thebreaking wheel,hanged, drawn and quartered,mazzatello (beating the head with a mallet or mace),boiling to death,death by burning,execution by drowning, feeding alive to predatory animals, death by starvation,immurement,flaying,disembowelment,crucifixion,impalement,crushing,execution by elephant,keelhauling,stoning,dismemberment,sawing,slow slicing,blood eagle,bamboo torture andnecklacing.[7]
In 2008,Michael Portillo on the showHorizon argued that in ensuring an execution is not of a cruel and unusual nature, the following criteria must be met:
It was found that no present-used method could fulfil these criteria and the unethical nature of capital punishment invalidates these principles, but that hypoxia, i.e. throughinert gas asphyxiation (a method then not in use) held the most promise.[8] Furthermore, a study conducted byHarold Hillman in 1993 on "possible pain experienced during execution by different methods" reached the conclusion that "[a]ll of the methods used for executing people [includingshooting,hanging,stoning,beheading,electrocution,gassing], with the possible exception ofintravenous injection, are likely to cause pain".[9]
The key landmark is the Bill of Rights (1689), which established the supremacy of Parliament over the Crown. ... The Bill of Rights (1689) then settled the primacy of Parliament over the monarch's prerogatives, providing for the regular meeting of Parliament, free elections to the Commons, free speech in parliamentary debates, and some basic human rights, most famously freedom from 'cruel or unusual punishment'.
