Style of Interpretation

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


At first, the Court was inclined to an historical style of interpretation, determining whether a punishment was “cruel and unusual” by looking to see if it or a sufficiently similar variant had been considered “cruel and unusual” in 1789.45 In Weems v. United States,46 however, the Court concluded that the framers had not merely intended to bar the reinstitution of procedures and techniques condemned in 1789, but had intended to prevent the authorization of “a coercive cruelty being exercised through other forms of punishment.” The Amendment therefore was of an “expansive and vital character”47 and, in the words of a later Court, “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”48 The proper approach to an interpretation of this provision has been one of the major points of difference among the Justices in the capital punishment cases.49

45 Wilkerson v. Utah, 99 U.S. 130 (1878); In re Kemmler, 136 U.S. 436 (1890); cf. Weems v. United States, 217 U.S. 349, 368–72 (1910). Chief Justice Rehnquist subscribed to this view (see,e.g., Woodson v. North Carolina, 428 U.S. 280, 208 (dissenting)), and the views of Justices Scalia and Thomas appear to be similar. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 966–90 (1991) (Justice Scalia announcing judgment of Court) (relying on original understanding of Amendment and of English practice to argue that there is no proportionality principle in non-capital cases); and Hudson v. McMillian, 503 U.S. 1, 28 (1992) (Justice Thomas dissenting) (objecting to Court’s extension of the Amendment “beyond all bounds of history and precedent” in holding that “significant injury” need not be established for sadistic and malicious beating of shackled prisoner to constitute cruel and unusual punishment).

46 217 U.S. 349 (1910).

47 217 U.S. at 376–77.

48 Trop v. Dulles, 356 U.S. 86, 100–01 (1958) (plurality opinion). This oft-quoted passage was later repeated, with the Court adding that cruel and unusual punishment “is judged not by the standards that prevailed in 1685 . . . or when the Bill of Rights was adopted, but rather by those that currently prevail.” Atkins v. Virginia, 536 U.S. 304, 311–12 (2002).

49 See Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause, 126 U. Pa. L. Rev. 989 (1978).