Wisconsin Constitution
Article I - Declaration Of Rights
Section 6 - Excessive bail; cruel punishments.

Imposition of a 3-year sentence as a repeater was not cruel and unusual even though the present offense only involved the stealing of 2 boxes of candy, which carried a maximum sentence of 6 months. Hanson v. State, 48 Wis. 2d 203, 179 N.W.2d 909.

It was not cruel and unusual punishment to sentence a defendant to 25 years for armed robbery when the maximum was 30 years, when by stipulation the court took into consideration 5 other uncharged armed robberies. Mallon v. State, 49 Wis. 2d 185, 181 N.W.2d 364.

Current standards of what constitutes cruel and unusual punishment should not be applied in reviewing old sentences of long standing. State ex rel. Warren v. County Court, 54 Wis. 2d 613, 197 N.W.2d 1.

A sentence is not discriminatory and excessive because it is substantially greater than that received by a codefendant. State v. Studler, 61 Wis. 2d 537, 213 N.W.2d 24.

Actions for the forfeiture of property that are commenced by the government and driven in whole or in part by a desire to punish may violate the guarantees against excessive punishment. State v. Hammad, 212 Wis. 2d 343, 569 N.W.2d 68 (Ct. App. 1997), 95-2669.

A prison inmate does not possess a reasonable expectation of privacy in his body that permits a 4th amendment challenge to strip searches. Prisoners convicted of crimes are protected from cruel and unusual treatment that prohibits prison officials from utilizing strip searches to punish, harass, humiliate, or intimidate inmates regardless of their status in the institution. Al Ghashhiyah v. McCaughtry, 230 Wis. 2d 587, 602 N.W.2d 307 (Ct. App. 1999), 98-3020.

Cruel and unusual punishment extends to the denial of medical care if a serious medical need was ignored and prison officials were deliberately indifferent to the inmate's condition. A serious medical need means that the illness or injury is sufficiently serious to make the refusal uncivilized. Deliberate indifference implies an act so dangerous that the defendant's knowledge of the risk of harm from the resulting act can be inferred. Cody v. Dane County, 2001 WI App 60, 242 Wis. 2d 173, 625 N.W.2d 630, 00-0549.

The defendant's life expectancy, coupled with a lengthy sentence, while perhaps guaranteeing that the defendant will spend the balance of his or her life in prison, does not have to be taken into consideration by the circuit court. If the circuit court chooses to consider a defendant's life expectancy, it must explain, on the record, how the defendant's life expectancy fits into the sentencing objectives. State v. Stenzel, 2004 WI App 181, 276 Wis. 2d 224, 688 N.W.2d 20, 03-2974.

In addressing whether a sentence constituted cruel and unusual punishment and was excessive, a court looks to whether the sentence was so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances. State v. Davis, 2005 WI App 98, 698 N.W.2d 823, 281 Wis. 2d 118, 04-1163.

A prisoner has a liberty interest in avoiding forced nutrition and hydration, but department of corrections may infringe on the prisoner's liberty interest by forcing him or her to ingest food and fluids against his or her will. A court may enter a temporary ex parte order for involuntarily feeding and hydration, if exigent circumstances require immediate involuntary treatment in order to avoid serious harm to or the death of an inmate. Continuation of the order requires the right to an evidentiary hearing when DOC's allegations are disputed, the opportunity to meaningfully participate in the evidentiary hearing, and that the order cannot be of indefinite or permanent duration without periodic review. Department of Corrections v. Saenz, 2007 WI App 25, 299 Wis. 2d 486, 728 N.W.2d 765, 05-2750.

Sentencing a 14-year-old to life imprisonment without the possibility of parole for committing intentional homicide is not categorically unconstitutional and is not unduly harsh and excessive. Fourteen-year-olds who commit homicide do not have the same diminished moral culpability as those juvenile offenders who do not commit homicide. Sentencing a 14-year-old to life imprisonment without parole for committing intentional homicide serves the legitimate penological goals of retribution, deterrence, and incapacitation. That the defendant was 14 years old at the time of the offense and suffered an indisputably difficult childhood does not automatically remove the punishment out of the realm of proportionate. State v. Ninham, 2011 WI 33, 333 Wis. 2d 335, 797 N.W.2d 451, 08-1139.

See also State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876.

While Saenz addressed initial authorization for forced feeding, it is consistent with Saenz to require that, when the Department of Corrections (DOC) seeks a continuation of that authorization, the focus is on what will likely occur if the authorization to force feed is terminated. In these circumstances DOC must show that: 1) if forced feeding is withdrawn, it is likely the inmate would continue his or her hunger strike; and 2) if the inmate does continue, the inmate would, based on reliable medical opinion, be in imminent danger of suffering serious harm or death. Department of Corrections v. Lilly, 2011 WI App 123, 337 Wis. 2d 185, 804 N.W.2d 489, 09-1420.

Because of the presumptive validity of the medical opinions that support the necessity for continued forced feeding of a prisoner, the circuit court must accept them unless there is evidence that they are a substantial departure from accepted medical judgment, practice, or standards. A medical opinion is presumptively a “reliable medical opinion" within the meaning of the showing DOC must make when the opinion is that of a licensed physician who is qualified by training or experience to render the opinion and the opinion is based on a proper evidentiary foundation. Department of Corrections v. Lilly, 2011 WI App 123, 337 Wis. 2d 185, 804 N.W.2d 489, 09-1420.

A prisoner's objections to the manner of forced feeding that may implicate the 8th amendment protection against cruel and unusual punishment are properly before the circuit court when DOC seeks a continuation of authorization to force feed the prisoner. When the allegation is one of excessive force, the 8th amendment protects against force that is not applied in a good faith effort to maintain order but is maliciously and sadistically applied to cause harm. Department of Corrections v. Lilly, 2011 WI App 123, 337 Wis. 2d 185, 804 N.W.2d 489, 09-1420.

A proportionality test is utilized for determining whether a forfeiture is unconstitutionally excessive, considering the nature of the offense, the purpose of the statute, the maximum potential fine for the offense, and the harm that actually resulted from the defendant's conduct. State v. One 2013, Toyota Corolla, 2015 WI App 84, 365 Wis. 2d 582, 872 N.W.2d 98, 14-2226.

Forfeiture of a convicted drug seller's financial interest in a vehicle did not violate the Excessive Fines Clause, but forfeiture of a co-titleholders full financial interest in the vehicle was a different matter when undisputed testimony was that the co-titleholder had no knowledge of illegal activity and did not consent to it. The co-titleholder was entitled to any remaining proceeds beyond the drug seller's financial interest in the vehicle after its sale. State v. One 2013, Toyota Corolla, 2015 WI App 84, 365 Wis. 2d 582, 872 N.W.2d 98, 14-2226.

The basic precept underlying the prohibition against cruel and unusual punishment is one of proportionality that punishment for the crime should be graduated and proportional to both the offender and the offense. A punishment violates this prohibition if it is inconsistent with evolving standards of decency that mark the progress of a maturing society. In deciding a categorical challenge such as this, a court will first consider objective indicia of society's standards, as expressed in legislative enactments and state practice to determine whether there is a national consensus against the sentencing practice at issue. Second, notwithstanding such objective evidence, a court will exercise its own independent judgment to determine whether the punishment violates the constitutional prohibition. State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876.

The United States Supreme Court in Miller v. Alabama, 132 S. Ct. 2455, did not foreclose a sentencer's ability to sentence a juvenile to life without the possibility of parole in homicide cases, but required sentencing courts to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison. Thus, it is not unconstitutional to sentence a juvenile to life imprisonment without the possibility of supervised release for intentional homicide under s. 973.014 (1g) (a) 3. if the circumstances warrant it. State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876.

The mandatory minimum of 20 years' imprisonment provided by s. 973.014 (1g) (a) 1. as applied to children does not violate the prohibitions against cruel and unusual punishment contained in the United States and Wisconsin Constitutions. State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876.

Paddling students is not cruel and unusual punishment. Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401, 51 L. Ed. 711 (1977).

A defendant's life sentence was not cruel and unusual when the defendant's 3 property crime felony convictions subjected him to a recidivist penalty. Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980).

A prison term of 40 years and fine of $20,000 for possession and sale of 9 ounces of marijuana was not cruel and unusual punishment. Hutto v. Davis, 454 U.S. 370, 102 S. Ct. 703, 70 L. Ed. 2d 566 (1982).

The excessive fines clause of U.S. Constitution does not apply to civil punitive damage awards in actions between private parties. Browning-Ferris v. Kelco Disposal, 492 U.S. 257, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989).

Exposure to an unreasonable risk of serious damage to future health is a basis for a cause of action for cruel and unusual punishment. Risk from environmental tobacco smoke was a basis for a cause of action. Helling v. McKinney, 509 U.S. 25, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993).

A sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the California three strikes law, is not grossly disproportionate and therefore does not violate the prohibition on cruel and unusual punishments. Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003).

A state is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. The state must give defendants some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation, but the 8th amendment does not require the state to release that offender during his natural life. Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).

A mandatory life sentence without parole for those under the age of 18 at the time of their crimes violates the 8th amendment's prohibition on cruel and unusual punishments. Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 182 L. Ed. 2d 407 (2012).

The “unnecessary and wanton infliction of pain" proscribed by the 8th amendment includes a prohibition on deliberate indifference to the serious medical needs of prisoners. To establish such a claim, a plaintiff must demonstrate that: 1) the prisoner's condition was objectively serious; and 2) the defendants were deliberately indifferent to the prisoner's health or safety. A serious medical condition is one that has been diagnosed by a physician or that is so obvious that even a lay person would perceive the need for a doctor's attention. A medical condition need not be life threatening to be serious; rather, it could be a condition that would result in further significant injury or unnecessary and wanton infliction of pain if not treated. The test for deliberate indifference is subjective: the plaintiff must show that the officials were both aware of facts from which the inference could be drawn that a substantial risk of serious harm existed and that they actually drew the inference. Orlowski v. Milwaukee County, 872 F.3d 417 (2017).

Persons confined in the central state hospital under ss. 51.20, 51.37, 971.14, 971.17, and 975.06 are being subjected to punishment within the meaning of the cruel and unusual punishment clause. Flakes v. Percy, 511 F. Supp. 1325 (1981).

A prisoner has no liberty interest in avoiding transfer to any prison, whether within or without the state. Berdine v. Sullivan, 161 F. Supp. 2d 972 (2001).

Incarcerating a person beyond the termination of his or her sentence without penological justification violates the 8th amendment prohibition against cruel and unusual punishment when it is the product of deliberate indifference. To comply with due process, prison officials cannot ignore an inmate's request to recalculate his or her sentence and must place some procedure in place to address such requests. Russell v. Lazar, 300 F. Supp 2d 316 (2004).

Solitary confinement; punishment within the letter of the law or psychological torture? Thoenig, 1972 WLR 223.

Appellate sentence review. 1976 WLR 655.