Cruel and unusual punishment

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Cruel and unusual punishment is a phrase in common law describing punishment that is considered unacceptable due to the suffering, pain, or humiliation it inflicts on the person subjected to the sanction. The precise definition varies by jurisdiction, but typically includes punishments that are arbitrary, unnecessary, or overly severe compared to the crime.

Contents

History

The words "cruel and unusual punishment" (the actual words were firstly illegall and cruell Punishments and secondly cruell and unusuall Punishments) were first used in the English Bill of Rights 1689. [1] [2] They were later also adopted in the United States by the Eighth Amendment to the United States Constitution (ratified 1791) and in the British Leeward Islands (1798). Very similar words, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment", appear in Article 5 of the Universal Declaration of Human Rights adopted by the United Nations General Assembly on December 10, 1948. The right under a different formulation is also found in Article 3 of the European Convention on Human Rights (1950) and in Article 7 of the International Covenant on Civil and Political Rights (1966). The Canadian Charter of Rights and Freedoms (1982) also contains this fundamental right in section 12 and it is to be found in Article 4 (quoting the European Convention verbatim) of the Charter of Fundamental Rights of the European Union (2000). It is also found in Article 16 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984), and in Article 40 of the Constitution of Poland (1997). [3] The Constitution of the Marshall Islands, in the sixth section of its Bill of Rights (Article 2), prohibits "cruel and unusual punishment", which it defines as: the death penalty; torture; "inhuman and degrading treatment"; and "excessive fines or deprivations". [4]

United States

The Eighth Amendment to the United States Constitution states that "cruel and unusual punishments [shall not be] inflicted." The general principles that the United States Supreme Court relied on to decide whether or not a particular punishment was cruel and unusual were determined by Justice William Brennan. [5] In Furman v. Georgia , 408 U.S. 238 (1972), Justice Brennan concurring wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."

And he added: "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."

Continuing, he wrote that he expected that no state would pass a law obviously violating any one of these principles, so court decisions regarding the Eighth Amendment would involve a "cumulative" analysis of the implication of each of the four principles. In this way, the United States Supreme Court "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." [6]

Capital punishment

There is much discussion as to whether capital punishment is considered cruel and unusual. Common arguments are that capital punishment is more expensive when factoring in appeals versus life in prison, and that the government has been wrong before on death penalty cases (therefore, the government could be wrong again, and the government ought not have the authority to end a life). These two arguments alone may or may not qualify under the tests the government puts forth, which could also be considered arbitrary itself, especially if society is not informed enough on these considerable facts. For most of recorded history, capital punishments were often deliberately cruel, painful, and/or degrading. Severe historical execution methods include the breaking wheel, hanged, drawn and quartered, mazzatello, boiling to death, death by burning, execution by drowning, feeding alive to predatory animals, death by starvation, immurement, flaying, disembowelment, crucifixion, impalement, crushing, execution by elephant, keelhauling, stoning, dismemberment, sawing, slow slicing, blood eagle, bamboo torture and necklacing. [7]

In 2008, Michael Portillo on the show Horizon argued that in ensuring an execution is not of a cruel and unusual nature, the following criteria must be met:

It was found that no present-used method could fulfil these criteria and the unethical nature of capital punishment invalidates these principles, but that hypoexia, i.e. through inert gas asphyxiation (a method then not in use) held the most promise. [8] Furthermore, a study conducted by Harold Hillman in 1993 on "possible pain experienced during execution by different methods" reached the conclusion that "[a]ll of the methods used for executing people [including shooting, hanging, stoning, beheading, electrocution and gassing], with the possible exception of intravenous injection, are likely to cause pain". [9]

See also

Related Research Articles

Capital punishment, also known as the death penalty and formerly called judicial homicide, is the state-sanctioned killing of a person as punishment for actual or supposed misconduct. The sentence ordering that an offender be punished in such a manner is known as a death sentence, and the act of carrying out the sentence is known as an execution. A prisoner who has been sentenced to death and awaits execution is condemned and is commonly referred to as being "on death row". Etymologically, the term capital refers to execution by beheading, but executions are carried out by many methods, including hanging, shooting, lethal injection, stoning, electrocution, and gassing.

<span class="mw-page-title-main">Eighth Amendment to the United States Constitution</span> 1791 amendment regulating forms of punishment

The Eighth Amendment to the United States Constitution protects against imposing excessive bail, excessive fines, or cruel and unusual punishments. This amendment was adopted on December 15, 1791, along with the rest of the United States Bill of Rights. The amendment serves as a limitation upon the state or federal government to impose unduly harsh penalties on criminal defendants before and after a conviction. This limitation applies equally to the price for obtaining pretrial release and the punishment for crime after conviction. The phrases in this amendment originated in the English Bill of Rights of 1689.

<span class="mw-page-title-main">United Nations Convention Against Torture</span> International human rights instrument against torture and cruel or unusual punishment

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is an international human rights treaty under the review of the United Nations that aims to prevent torture and other acts of cruel, inhuman, or degrading treatment or punishment around the world.

The Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol, is the first set of international guidelines for documentation of torture and its consequences. It became an official United Nations document in 1999; the most recent revision was in June 2022.

<span class="mw-page-title-main">Capital punishment in India</span>

Capital punishment in India is a legal penalty for some crimes under the country's main substantive penal legislation, the Indian Penal Code, as well as other laws. Executions are carried out by hanging as the primary method of execution per Section 354(5) of the Criminal Code of Procedure, 1973 is "Hanging by the neck until dead", and is imposed only in the 'rarest of cases'.

The People of the State of California v. Robert Page Anderson, 493 P.2d 880, 6 Cal. 3d 628, was a landmark case in the state of California that outlawed capital punishment for nine months until the enactment of a constitutional amendment reinstating it, Proposition 17.

<span class="mw-page-title-main">Capital punishment in Belarus</span>

Capital punishment is a legal penalty in Belarus. At least one execution was carried out in the country in 2022.

Security of the person is a basic entitlement guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. It is also a human right explicitly defined and guaranteed by the European Convention on Human Rights, the Constitution of Canada, the Constitution of South Africa and other laws around the world.

There are cases, both documented and alleged, that involve the usage of torture by members of the United States government, military, law enforcement agencies, intelligence agencies, health care services, and other public organizations both in and out of the country.

Glass v. Louisiana, 471 U.S. 1080 (1985), was a case denied for hearing by the United States Supreme Court in 1985. The case is famous for Justice Brennan's dissent from the denial of certiorari, joined by Justice Marshall, arguing that the death penalty is always unconstitutional.

Baze v. Rees, 553 U.S. 35 (2008), is a decision by the United States Supreme Court, which upheld the constitutionality of a particular method of lethal injection used for capital punishment.

Wilkerson v. Utah, 99 U.S. 130 (1879), is a United States Supreme Court case in which the Court affirmed the judgment of the Supreme Court of the Territory of Utah in stating that execution by firing squad, as prescribed by the Utah territorial statute, was not cruel and unusual punishment under the Eighth Amendment to the United States Constitution.

Article 3 of the European Convention on Human Rights prohibits torture, and "inhuman or degrading treatment or punishment".

Article 3 – Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

<i>S v Makwanyane</i> South African legal case

S v Makwanyane and Another was a landmark 1995 judgment of the Constitutional Court of South Africa. It established that capital punishment was inconsistent with the commitment to human rights expressed in the Interim Constitution. The court's ruling invalidated section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which had provided for use of the death penalty, along with any similar provisions in any other law in force in South Africa. The court also forbade the government from carrying out the death sentence on any prisoners awaiting execution, ruling that they should remain in prison until new sentences were imposed. Delivered on 6 June, this was the newly established court's "first politically important and publicly controversial holding."

Hanging has been practiced legally in the United States of America from before the nation's birth, up to 1972 when the United States Supreme Court found capital punishment to be in violation of the Eighth Amendment to the United States Constitution. Four years later, the Supreme Court overturned its previous ruling, and in 1976, capital punishment was again legalized in the United States. As of 2023, only New Hampshire has a law specifying hanging as an available secondary method of execution, and even then only for the one remaining capital punishment sentence in the state.

Papua New Guinea (PNG) has a population of 6.8 million, nearly half of which is under 18 years of age. Public trust in the justice system has been eroded, and the country’s significant crime problem exacerbated, by brutal responses from police against those they suspect of having committed offences, and the routine violence, abuse and rape carried out by police against persons, including children, within their custody. Many incidents are cases of opportunistic abuses of power by police instead of their following official processes. While a raft of measures have been assembled in order to improve conditions and processes for youths within the justice system, their success has been hampered by a severe lack of implementation, insufficient resources, and failure to impose appropriate penalties on authorities for failure to adhere to their provisions.

Bucklew v. Precythe, 587 U.S. 119 (2019), was a United States Supreme Court case regarding the standards for challenging methods of capital punishment under the Eighth Amendment to the United States Constitution. In a 5–4 decision, the Court held that when a convict sentenced to death challenges the State's method of execution due to claims of excessive pain, the convict must show that other alternative methods of execution exist and clearly demonstrate they would cause less pain than the state-determined one. The Court's opinion emphasized the precedential force of its prior decisions in Baze v. Rees and Glossip v. Gross.

Cruel, inhuman or degrading treatment (CIDT) is treatment of persons which is contrary to human rights or dignity, but is not classified as torture. It is forbidden by the Universal Declaration of Human Rights, Article 3 of the European Convention on Human Rights, the United Nations Convention against Torture and the International Covenant on Civil and Political Rights. Although the distinction between torture and CIDT is maintained from a legal point of view, medical and psychological studies have found that it does not exist from the psychological point of view, and people subjected to CIDT will experience the same consequences as survivors of torture. Based on this research, some practitioners have recommended abolishing the distinction.

The prohibition of torture is a peremptory norm in public international law—meaning that it is forbidden under all circumstances—as well as being forbidden by international treaties such as the United Nations Convention Against Torture.

Torture is generally defined as deliberately inflicting "severe pain or suffering" on a prisoner, but exactly what this means in practice is disputed.

References

  1. ↑ "Britain's unwritten constitution". British Library. Archived from the original on 28 October 2021. Retrieved 27 November 2015. The key landmark is the Bill of Rights (1689), which established the supremacy of Parliament over the Crown. ... The Bill of Rights (1689) then settled the primacy of Parliament over the monarch's prerogatives, providing for the regular meeting of Parliament, free elections to the Commons, free speech in parliamentary debates, and some basic human rights, most famously freedom from 'cruel or unusual punishment'.
  2. ↑ "Bill of Rights [1688]". 2024-01-30. Archived from the original on 2024-01-30. Retrieved 2024-06-28.
  3. ↑ Constitution of Poland, Chapter 2
  4. ↑ Constitution of the Marshall Islands Archived 2011-01-02 at the Wayback Machine , art.II, s.6
  5. ↑ Palmer, Louis J. Jr. (July 1999). Organ Transplants from Executed Prisoners: An Argument for the Creation of Death Sentence Organ Removal Statutes. Mcfarland & Co Inc Pub. p. 80. ISBN   978-0-7864-0673-9. Archived from the original on 2022-03-14. Retrieved 2020-10-02.
  6. ↑ the International Justice Project. "Seminal Cases - Brief Bank & General Resources - the International Justice Project". Archived from the original on 2 August 2012. Retrieved 7 January 2012.
  7. ↑ "The Death Penalty: Revenge Is the Mother of Invention". Time . 24 January 1983. Archived from the original on February 22, 2008.
  8. ↑ "BBC - Horizon - How to Kill a Human Being". Archived from the original on 2020-11-09. Retrieved 2014-02-09.
  9. ↑ Hillman, Harold (1993). "The possible pain experienced during execution by different methods" (PDF). Perception . 22: 745–753. Archived from the original (PDF) on 2011-04-30. Retrieved 2024-09-17.
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