The Bill of Rights guarantees Americans the right to not be subject to cruel and unusual punishment. But what does the term “cruel and unusual” mean? Today we shall explore the right to be free from cruel and unusual punishment in Florida and what you need to know if you find yourself facing criminal sanction in Tampa courts.
The phrase “cruel and unusual punishment” originated in the English Bill of Rights in 1689, over a century before they were used in the Eighth Amendment to the US Constitution.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Though the phrase has been in American jurisprudence for over two centuries, it has not always been clear what “cruel and unusual” meant in such a context. Our current understanding of the phrase comes from the 1968 Supreme Court decision Furman v. Georgia. In the one-paragraph per curiam opinion, the Court said that the imposition of the death penalty constituted cruel and unusual punishment. However, the 5-4 court was unable to agree why it is so.
Ultimately the guidestone for what constitutes cruel and unusual punishment has fallen to Justice William Brennan’s concurring opinion, which states in relevant part:
“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”,
A severe punishment that is obviously inflicted in wholly arbitrary fashion.”
“A severe punishment that is clearly and totally rejected throughout society.”
“A severe punishment that is patently unnecessary.”
Brennan then clarified his reasoning further by stating,
“The function of these principles, after all, is simply to provide [the] means by which a court can determine whether [the] challenged 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.”
Finally, Brennan indicated that states would not intentionally pass statutes violating these principles, so subsequent court decisions must take a “cumulative” examination of the implication of the four stated principles. He concluded by stating that the Supreme Court has
“set the standard that a punishment would be cruel and unusual [if] it was too severe for the crime, [if] it was arbitrary, if it offended society’s sense of justice, or if it was not more effective than a less severe penalty.”
The right to be free from cruel and unusual punishment was incorporated to the individual states in Robinson v. California in 1962.