Cruel and unusual punishment is a phrase in
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
describing
punishment
Punishment, commonly, is the imposition of an undesirable or unpleasant outcome upon a group or individual, meted out by an authority—in contexts ranging from child discipline to criminal law—as a response and deterrent to a particular acti ...
that is considered unacceptable due to the
suffering,
pain, or
humiliation
Humiliation is the abasement of pride, which creates mortification or leads to a state of being humbled or reduced to lowliness or submission. It is an emotion felt by a person whose social status, either by force or willingly, has just dec ...
it inflicts on the person subjected to the sanction. The precise definition varies by jurisdiction, but typically includes punishments that are arbitrary, unnecessary, overly severe compared to the crime, or not generally accepted in society.
History
The words cruel and unusual punishment were first used in the
English
English usually refers to:
* English language
* English people
English may also refer to:
Peoples, culture, and language
* ''English'', an adjective for something of, from, or related to England
** English national ide ...
Bill of Rights 1689
The Bill of Rights 1689 is an Act of the Parliament of England, which sets out certain basic civil rights and clarifies who would be next to inherit the Crown, and is seen as a crucial landmark in English constitutional law. It received Royal ...
. They were later also adopted in the United States by the
Eighth Amendment to the United States Constitution
The Eighth Amendment (Amendment VIII) to the United States Constitution protects against imposing excessive bail, excessive fines, or cruel and unusual punishments. This amendment was adopted on December 15, 1791, along with the rest of the ...
(ratified 1791) and in the
British Leeward Islands
The British Leeward Islands was a British colony from 1671 to 1958, consisting of the English (later British) overseas possessions in the Leeward Islands. It ceased to exist from 1816 to 1833, during which time it was split into two separate ...
(1798). Very similar words, "No one shall be subjected to
torture
Torture is the deliberate infliction of severe pain or suffering on a person for reasons such as punishment, extracting a confession, interrogation for information, or intimidating third parties. Some definitions are restricted to acts c ...
or to cruel,
inhuman or degrading treatment or punishment", appear in Article 5 of the
Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the Human rights, rights and freedoms of all human beings. Drafted by a UN Drafting of the Universal De ...
adopted by the
United Nations General Assembly
The United Nations General Assembly (UNGA or GA; french: link=no, Assemblée générale, AG) is one of the six principal organs of the United Nations (UN), serving as the main deliberative, policymaking, and representative organ of the UN. Curr ...
on December 10, 1948. The right under a different formulation is also found in
Article 3 of the European Convention on Human Rights Article 3 of the European Convention on Human Rights prohibits torture, and "inhuman or degrading treatment or punishment".
An absolute right
Article 3 is an absolute right. The right is unqualified and cannot be balanced against the rights and ...
(1950) and in Article 7 of the
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedo ...
(1966). The
Canadian Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
(1982) also contains this fundamental right in
section 12 and it is to be found in Article 4 (quoting the European Convention verbatim) of the
Charter of Fundamental Rights of the European Union
The Charter of Fundamental Rights of the European Union (CFR) enshrines certain political, social, and economic rights for European Union (EU) citizens and residents into EU law. It was drafted by the European Convention and solemnly proclai ...
(2000). It is also found in Article 16 of the
(1984), and in Article 40 of the
Constitution of Poland
The current Constitution of Poland was founded on 2 April 1997. Formally known as the Constitution of the Republic of Poland ( pl, Konstytucja Rzeczypospolitej Polskiej), it replaced the Small Constitution of 1992, the last amended version of ...
(1997). The
Constitution of the Marshall Islands
The Constitution of the Marshall Islands is the supreme law of the Republic of the Marshall Islands, in force from 1 May 1979.
Its text is both English and Marshallese.
The Constitution was approved on 1 March 1979 by constitutional referendum ...
, in the sixth section of its Bill of Rights (Article 2), prohibits "cruel and unusual punishment", which it defines as: the
death penalty
Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
; torture; "inhuman and degrading treatment"; and "
excessive fines
The Eighth Amendment (Amendment VIII) to the United States Constitution protects against imposing excessive bail, excessive fines, or cruel and unusual punishments. This amendment was adopted on December 15, 1791, along with the rest of the ...
or deprivations".
United States
The
Eighth Amendment to the United States Constitution
The Eighth Amendment (Amendment VIII) to the United States Constitution protects against imposing excessive bail, excessive fines, or cruel and unusual punishments. This amendment was adopted on December 15, 1791, along with the rest of the ...
states that "cruel and unusual punishments
hall not beinflicted." The general principles that the
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
relied on to decide whether or not a particular punishment was cruel and unusual were determined by
Justice William Brennan
William Joseph "Bill" Brennan Jr. (April 25, 1906 – July 24, 1997) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1956 to 1990. He was the seventh-longest serving justice ...
. In ''
Furman v. Georgia
''Furman v. Georgia'', 408 U.S. 238 (1972), was a landmark criminal case in which the United States Supreme Court invalidated all then existing legal constructions for the death penalty in the United States. It was 5–4 decision, with each memb ...
'', , Justice Brennan concurring wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."
* The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity", especially
torture
Torture is the deliberate infliction of severe pain or suffering on a person for reasons such as punishment, extracting a confession, interrogation for information, or intimidating third parties. Some definitions are restricted to acts c ...
.
* "A severe punishment that is obviously inflicted in wholly arbitrary fashion." (''
Furman v. Georgia
''Furman v. Georgia'', 408 U.S. 238 (1972), was a landmark criminal case in which the United States Supreme Court invalidated all then existing legal constructions for the death penalty in the United States. It was 5–4 decision, with each memb ...
'' temporarily suspended
capital punishment
Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
for this reason.)
* "A severe punishment that is clearly and totally rejected throughout society."
* "A severe punishment that is patently unnecessary."
And he added: "The function of these principles, after all, is simply to provide
hemeans by which a court can determine whether
hechallenged 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
fit was too severe for the crime,
fit was arbitrary, if it offended society's sense of justice, or if it was not more effective than a less severe penalty."
Capital punishment
There is much discussion as to whether
capital punishment
Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
is considered cruel and unusual. Common arguments are that capital punishment is more expensive when factoring in
appeals versus
life in prison
Life imprisonment is any sentence of imprisonment for a crime under which convicted people are to remain in prison for the rest of their natural lives or indefinitely until pardoned, paroled, or otherwise commuted to a fixed term. Crimes for ...
, 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 the
breaking wheel
The breaking wheel or execution wheel, also known as the Wheel of Catherine or simply the Wheel, was a torture method used for public execution primarily in Europe from antiquity through the Middle Ages into the early modern period by breakin ...
,
hanged, drawn and quartered
To be hanged, drawn and quartered became a statutory penalty for men convicted of high treason in the Kingdom of England from 1352 under Edward III of England, King Edward III (1327–1377), although similar rituals are recorded during the rei ...
,
mazzatello,
boiling to death
Death by boiling is a method of execution in which a person is killed by being immersed in a boiling liquid. While not as common as other methods of execution, boiling to death has been practiced in many parts of Europe and Asia. Due to the lengthy ...
,
death by burning
Death by burning (also known as immolation) is an execution and murder method involving combustion or exposure to extreme heat. It has a long history as a form of public capital punishment, and many societies have employed it as a punishment ...
,
execution by drowning
Drowning as a method of execution is attested very early in history, for a large variety of cultures and as the method of execution for many types of offences.
Prohibition on shedding royal blood
In a variety of cultures, taboos against shedding t ...
, death by starvation,
immurement
Immurement (from the Latin , "in" and , "wall"; literally "walling in"), also called immuration or live entombment, is a form of imprisonment, usually until death, in which a person is sealed within an enclosed space without exits. This includes i ...
,
flaying
Flaying, also known colloquially as skinning, is a method of slow and painful execution in which skin is removed from the body. Generally, an attempt is made to keep the removed portion of skin intact.
Scope
A dead animal may be flayed when pr ...
,
disembowelment,
crucifixion
Crucifixion is a method of capital punishment in which the victim is tied or nailed to a large wooden cross or beam and left to hang until eventual death from exhaustion and asphyxiation. It was used as a punishment by the Persians, Carthagi ...
,
impalement
Impalement, as a method of torture and execution, is the penetration of a human by an object such as a stake, pole, spear, or hook, often by the complete or partial perforation of the torso. It was particularly used in response to "crimes aga ...
,
crushing,
execution by elephant
Execution by elephant was a method of capital punishment in South and Southeast Asia, particularly in India, where Asian elephants were used to crush, dismember or torture captives in public executions. The animals were trained to kill victims ...
,
keelhauling
Keelhauling (Dutch ''kielhalen''; "to drag along the keel") is a form of punishment and potential execution once meted out to sailors at sea. The sailor was tied to a line looped beneath the vessel, thrown overboard on one side of the ship, and d ...
,
stoning
Stoning, or lapidation, is a method of capital punishment where a group throws stones at a person until the subject dies from blunt trauma. It has been attested as a form of punishment for grave misdeeds since ancient times.
The Torah and Ta ...
,
dismemberment
Dismemberment is the act of cutting, ripping, tearing, pulling, wrenching or otherwise disconnecting the limbs from a living or dead being. It has been practiced upon human beings as a form of capital punishment, especially in connection with ...
,
sawing
A saw is a tool consisting of a tough blade, wire, or chain with a hard toothed edge. It is used to cut through material, very often wood, though sometimes metal or stone. The cut is made by placing the toothed edge against the material and mov ...
,
slow slicing
''Lingchi'' (; ), translated variously as the slow process, the lingering death, or slow slicing, and also known as death by a thousand cuts, was a form of torture and execution used in China from roughly 900 CE up until the practice ended aro ...
,
blood eagle
The blood eagle was a method of ritually executing a chosen member as detailed in late skaldic poetry. According to the two instances mentioned in the Sagas, the victims (in both cases members of royal families) were placed in a prone position, t ...
,
bamboo torture
Bamboo torture is a form of torture and execution where a bamboo shoot grows through the body of a victim, and is reported to have been used in East Asia, East and South Asia, South Asian countries such as China, India, and especially Japan, but w ...
and
necklacing
Necklacing is a method of extrajudicial summary execution and torture carried out by forcing a rubber tire drenched with petrol around a victim's chest and arms, and setting it on fire. The term "necklace" originated in the 1980s in black townshi ...
.
In 2008,
Michael Portillo
Michael Denzil Xavier Portillo (; born 26 May 1953) is a British journalist, broadcaster and former politician. His broadcast series include railway documentaries such as '' Great British Railway Journeys'' and '' Great Continental Railway Jour ...
on the show ''
Horizon'' argued that in ensuring an execution is not of a cruel and unusual nature, the following criteria must be met:
* Death should be quick and painless to prevent suffering for the person being executed;
*
Medical education
Medical education is education related to the practice of being a medical practitioner, including the initial training to become a physician (i.e., medical school and internship) and additional training thereafter (e.g., residency, fellowship, ...
should be provided to the
executioner
An executioner, also known as a hangman or headsman, is an official who executes a sentence of capital punishment on a legally condemned person.
Scope and job
The executioner was usually presented with a warrant authorising or order ...
to prevent suffering caused by error;
* The death should not be gory (to prevent suffering for those carrying out the execution); and
* No co-operation should be required from the person being executed, to prevent inaction, distress, and/or suffering caused by the prisoner being required to participate in their own execution.
The show argued that
hypoxia appears to meet the criteria, by way of applying a combination of the gases
argon
Argon is a chemical element with the symbol Ar and atomic number 18. It is in group 18 of the periodic table and is a noble gas. Argon is the third-most abundant gas in Earth's atmosphere, at 0.934% (9340 ppmv). It is more than twice as ...
and
nitrogen
Nitrogen is the chemical element with the symbol N and atomic number 7. Nitrogen is a nonmetal and the lightest member of group 15 of the periodic table, often called the pnictogens. It is a common element in the universe, estimated at se ...
, as the person being executed would not feel any physical pain but would experience a
euphoric
Euphoria ( ) is the experience (or affect) of pleasure or excitement and intense feelings of well-being and happiness. Certain natural rewards and social activities, such as aerobic exercise, laughter, listening to or making music and da ...
state. It was further argued that these gases could be applied cheaply and efficiently by restraining the prisoner by way of
physical restraints and mask.
See also
*
Geneva Conventions
upright=1.15, Original document in single pages, 1864
The Geneva Conventions are four treaties, and three additional protocols, that establish international legal standards for humanitarian treatment in war. The singular term ''Geneva Conven ...
*
Prisoner abuse
Prisoner abuse is the mistreatment of persons while they are under arrest or incarcerated. Prisoner abuse can include physical abuse, psychological abuse, sexual abuse, torture, or other acts such as refusal of essential medication.
Physica ...
*
Psychological torture
Psychological torture or mental torture is a type of torture that relies primarily on psychological effects, and only secondarily on any physical harm inflicted. Although not all psychological torture involves the use of physical violence, there ...
*
Retributive justice
*
Warcrime
References
{{reflist
External links
Death Penalty Pros and Cons
Human rights abuses
Penology
Torture
Punishment
*