Most of us have probably heard the phrase in the US Constitution forbidding “cruel and unusual” punishments. My question is: what constitutes an “unusual” punishment under the law? Does it just mean “strange”, or does “uncommon” also factor into it? Has any punishment been thrown out by a court solely on the grounds of being unusual?
There was complaint at the time that the Eighth Amendment was drafted that the language was too vague. And it has remained vague ever since.
Generally, cruel and unusual are treated by the courts as being, in this context at least, synonyms: a punishment is unconstitutionally “unusual” if it is disproportionately severe, and a punishment is cruel if it is disproportionately severe.
This means that a punishment can be cruel and unusual because it is excessive, such as a ten year sentence for shoplifting a loaf of bread. Or it can be cruel and unusual because it is distasteful given our societal norms, such as amputating a finger. This definition of cruel and unusual has evolved over the years; before it was adopted, one legislator asked if this meant you couldn’t flog people are cut off parts of their ears anymore.
In recent years The Supreme Court has indicated, though that a punishment can stand because it may seem cruel, but it isn’t unusual. Specifically, this has been done to uphold thge use of mandatory sentencing guidelines in instances where the sentence given seems excessively long under the circumstances.
I am an attorney, but not a criminal attorney. Doubtless one can give a more precise answer.
(Is it really fair to call someone a “criminal attorney” until he’s been tried and convicted?)
A further clarification: the rationale for saying that excessive sentences under mandatory guidelines are not unusual is, basically, that courts have a long history of using mandatory guidelines, even if they do sometimes give lousy results.
Here is an ethical twist though: The California Three Strike Law. Does this constitute cruel and unusual punishment? Theorhetically (sp), can’t shoplifting get you 20 years too?
One would only get “Three Strikes” for felony shoplifting.
IANAL, but I was conversing with a law professor who had once represented one of our southern state’s penal systems. The state was facing a system wide class action law suit in which the prisoners were presenting irrefutable evidence of widespread abuse. One of the defenses the state ended up trying was that while the punishment might be “cruel” it was so prevalent it no longer met the definition of “unusual”. The judge apparently did not find this argument compelling.
SCOTUS says no.
I’ve long wondered about that (of course, not enough to get off my butt and actually look up some caselaw), and I’m relieved to hear that the judge didn’t buy it. Thanks.
Yes, but what’s normally a misdemeanor is charged as a felony.
"In the other case, Leandro Andrade was given a 50-year sentence in 1995 for stealing videotapes in two southern California stores. While in most cases the crime would have been a misdemeanor, Andrade’s prior felony burglary convictions turned it into a felony, his third. "
From Otto’s cite