Eighth Amendment Cruel and Unusual Punishment Clause
Capital punishment is also referred to as the Death Penalty. The term capital is derived from the Latin word for head. In ancient societies, more often than not, the death penalty was executed by beheading. Capital punishment laws have been from as far back as the Eighteenth Century B.C. (“Early History of the Death Penalty,” n.d.). The first recorded instance of the laws was in the Code of King Hammurabi of Babylon. In the Code 25, different crimes were punishable by death. In the United States the first recorded instance of capital punishment laws in use was during the colonial times in the early Seventeenth Century. Virginia was the first state to practice capital punishment in the new colonies when they executed Captain George Kendall in 1608. In 1612, the then Virginia governor Sir Thomas Dale passed into law the Divine, Moral and Martial Laws. Based on these laws, even minor offenses such as stealing grapes were punishable through the death penalty. The state of Massachusetts carried out its first execution in 1630.
In our contemporary society today, the acceptability of the death penalty as a form of punishment is debatable. In the mid-1970s, the Judiciary arm of government ruled on its constitutionality. Before then, the Judiciary was silent on the issue for the most part. In 1972, the Supreme Court gave their ruling on the Furman v. Georgia case. The case involved three petitioners: Furman, Jackson, and Branch (“Furman v. Georgia (1972),” n.d.). All three had received the death penalty for their crimes in the State of Georgia. Furman was convicted of murder while Jackson and Branch were convicted of rape. In the ruling, the Supreme Court found that the death penalty’s execution violated the Eighth Amendment that imposes a ban on cruel and unusual punishments. Following this ruling, the death penalty was put on hold in the United States until four years later, in 1976, when the Supreme Court abolished the ban on capital punishment while ruling on the Gregg v. Georgia case. In its ruling, the court said the new statues that had since been developed were more objective and regularized, and as a result, the death penalty did not violate the constitution in all instances.
According to the Eighth Amendment in the United States Constitution: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted” (Bessler, 2013). This amendment was ratified back in 1791. The most important clause in the amendment is the Cruel and Unusual Punishment Clause. It is also the most controversial clause. One of the punishments often shrouded with mystery and controversy based on the Eighth Amendment is capital punishment.
Justice William Brennan was one of the justices who gave their ruling on the Furman v. Georgia case in 1972. He was one of the five judges who agreed that the death penalty was cruel and unusual in the three petitioned cases. According to him, four principles can be used to determine whether the punishment involved is cruel and unusual (“Cruel and Unusual Punishment: The Death Penalty Cases: Furman v. Georgia, Jackson v. Georgia, Branch v. Texas, 408 U.S. 238 (1972),” 1973). The first principle is a punishment should not degrade the offender’s dignity as a human being, even in its severity. Taking the example of the death penalty, Justice Brennan argued that the punishment is degrading and brutalizing to the human spirit, given the amount of psychological torture involved. The second principle is that the state should not arbitrarily punish. In the case of the Furman v. Georgia case, Justice Brennan argued that the death penalty was being issued wantonly and freakishly that it did not serve any justice (“Cruel and Unusual Punishments,” n.d.). Its infrequency also did not help the issue. The third principle states that a punishment should be acceptable to society to be considered one that accords human dignity. A moratorium on execution usually follows death penalties. Justice Brennan argued that this indicated that the society does not support the punishment. The final principle is a severe punishment should not be issued in a patently unnecessary situation. According to Justice Brennan, capital punishment was unnecessary in the three petitioned cases as other less severe punishments could better accomplish the penal function. The four principles cited by Justice Brennan provide a good insight into what courts should use to determine if a form of punishment should be considered cruel and unusual.
In recent times one of the most controversial has been where transgender prisoners should serve their terms. More often than not, a prisoner who identifies as transgender is sent to either a male or female prison based on their gender at birth. However, this does not sufficiently address the need for transgender persons. As a result, transgender inmates tend to petition the court to send them to the correct prisons based on the gender they identify with, citing violation of the Eighth Amendment. According to them, being sent to prison based on the gender assigned to them at birth rather than the gender they identify with violates the ban on cruel and unusual punishment.
Adree Edmo, a transgender woman from Idaho, was convicted of sexually assaulting a fifteen-year-old in his sleep. At birth, she was identified as male, but she identifies as female. In 2017, Edmo sued the State of Idaho for refusing to provide gender confirmation surgery (Simmons, 2020). According to her lawyers, this violated her Eighth Amendment right against cruel and unusual punishment. After three years in court, the Supreme Court recently ruled in her favor and said the refusal to allow her to undergo surgery is indeed in violation of the Eighth Amendment.
Bressler, J. The Anomaly of Executions: The Cruel and Unusual Punishments Clause in the 21st Century. Scholar Works “University of Baltimore. Retrieved from https://scholarlycommons.law.northwestern.edu/jclc
Cruel and Unusual Punishments. (n.d.). Legal Information Institute. Retrieved from https://www.law.cornell.edu/constitution-conan/amendment-8/cruel-and-unusual-punishments
Cruel and Unusual Punishment: The Death Penalty Cases: Furman v. Georgia, Jackson v. Georgia, Branch v. Texas, 408 U.S. 238 (1972). Journal of Criminal Law and Criminology, 63 (4). Retrieved from https://scholarlycommons.law.northwestern.edu/jclc
Early History of the Death Penalty. (n.d.). Death Penalty Information Center. Retrieved from https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/early-history-of-the-death-penalty
Simmons, T. (2020). Idaho Transgender Inmate Becomes 2nd in Country to Receive Gender Confirmation Surgery. Idaho Press. Retrieved from https://www.idahopress.com/news/local/idaho-transgender-inmate-becomes-2nd-in-country-to-receive-gender-confirmation-surgery/article_f2aad619-2735-5040-8904-2a762f0734e9.html
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