Application and Scope

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


Well over a century ago, the Court began defining limits on the scope of criminal punishments allowed under the Eighth Amendment, noting that while “[d]ifficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted,” “it is safe to affirm that punishments of torture,” such as drawing and quartering, disemboweling alive, beheading, public dissection, and burning alive, are “forbidden by . . . [the] Constitution.”50 Nonetheless, in the context of capital punishment the Court has upheld the use of a firing squad51 and electrocution,52 generally holding that the Eighth Amendment prohibits punishments which “involve the unnecessary and wanton infliction of pain.”53 In two more recent cases, the Supreme Court held that the lethal injection protocols of the Commonwealth of Kentucky and the State of Oklahoma each withstood scrutiny under the Eighth Amendment, finding that neither protocol presented a “substantial risk of serious harm” or an “objectively intolerable risk of harm.”54

Divestiture of the citizenship of a natural born citizen was held to be cruel and unusual punishment in Trop v. Dulles.55 The Court viewed divestiture as a penalty more cruel and “more primitive than torture,” because it entailed statelessness or “the total destruction of the individual’s status in organized society.” “The question is whether [a] penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment.” A punishment must be examined “in light of the basic prohibition against inhuman treatment,” and the Amendment was intended to preserve the “basic concept . . . [of] the dignity of man” by assuring that the power to impose punishment is “exercised within the limits of civilized standards.”56

50 See Wilkerson v. Utah, 99 U.S. 130, 135–36 (1879).

51 Id. at 137–38.

52 See In re Kemmler, 136 U.S. 436, 447 (1890) (“Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.”); see also Louisiana ex. rel. Francis v. Resweber, 329 U.S. 459 (1947).

53 See Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion).

54 See Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality opinion) (upholding Kentucky’s use of a three-drug cocktail consisting of an anesthetic (sodium thiopental), a muscle relaxant, and an agent that induced cardiac arrest); see also Glossip v. Gross, 576 U.S. ___, No. 14–7955, slip op. (2015) (upholding Oklahoma’s use of a three-drug cocktail that utilized a sedative called midazolam in lieu of sodium thiopental).

55 356 U.S. 86 (1958). Again the Court was divided. Four Justices joined the plurality opinion while Justice Brennan concurred on the ground that the requisite relation between the severity of the penalty and legitimate purpose under the war power was not apparent. Id. at 114. Four Justices dissented, denying that denationalization was a punishment and arguing that instead it was merely a means by which Congress regulated discipline in the armed forces. Id. at 121, 124–27.

56 356 U.S. at 99–100. The action of prison guards in handcuffing a prisoner to a hitching post for long periods of time violated basic human dignity and constituted “gratuitous infliction of ‘wanton and unnecessary pain’” prohibited by the clause. Hope v. Pelzer, 536 U.S. 730, 738 (2002).

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