Constitution 101: Cruel and Unusual Punishment

The Constitution has prohibited cruel and unusual punishments since 1791, but does that mean we’re stuck with an 18th century definition of “cruel?” Or should the Bill of Rights “evolve” along with society? Find out in part 10 of Legal Lad’s series about the U.S. Constitution.

Adam Freedman
December 7, 2012

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Today’s Topic: Constitution 101 – Cruel and unusual punishment

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Constitution 101

This is the tenth installment of a new series on the U.S. Constitution and the Bill of Rights. For more on the Constitution, you can check out my new book, The Naked Constitution: What the Founders Said, and Why it Still Matters.

The Eighth Amendment

The Eighth Amendment to the Constitution sets forward a proposition that, at least on its face, everyone can agree with. It says: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The first two clauses about excessive bail and fines have not proven to be too controversial. The bit about cruel and unusual punishment, however, has launched thousands of lawsuits and scholarly articles.

Original Meaning or Evolving Standards?

The first point to note is that a particular form of punishment must be both cruel and unusual to violate the Eighth Amendment. Forcing a convicted criminal to dress up in a chicken suit might be unusual, but it probably would not be considered cruel. 

But then the question becomes: how do courts determine what is “cruel” and what is “unusual?” The text was originally understood to prohibit Congress from creating criminal punishments that would go beyond the level of severity permitted by common law. Of course, when the Bill of Rights was adopted, the common law allowed punishments that, by today’s standards, might seem harsh, like hanging, flogging, and even branding. Early commentators opined that the Eighth Amendment prohibited only really gruesome punishments, like burning at the stake.


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