Cruel and unusual punishment
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These exact words later appeared in the Eighth Amendment to the United States Constitution (1787). Very similar words ('No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment') appear in Article Five of the Universal Declaration of Human Rights adopted by the United Nations General Assembly (A/RES/217, December 10, 1948). The right, under a different formulation ('No one shall be subjected to [...] inhuman or degrading treatment or punishment.') is found in Article Three of the European Convention on Human Rights (1950). The Canadian Charter of Rights and Freedoms (1982) also contains this fundamental right in section 12 and it is to be found again in Article Four (quoting the European Convention verbatim) of the Charter of Fundamental Rights of the European Union (2000).
What these words mean in practice is the subject of much legal argument.
The Supreme Court has ruled that as written it applies only to punishments that are both cruel and unusual, and punishments that are unusual but not cruel, or cruel but not unusual, are constitutional.
In general the interpretation of each of the two words is in keeping with the basic legal maxim that the "punishment should fit the crime".
The term "cruel" is necessarily flexible according to the circumstances, since all punishments are inherently cruel to some greater or lesser degree. The "unusual" provision, has proven easier to interpret: providing that persons will not be subjected to arbitrary, humiliating, or capricious punishment outside the normal course of the law (for example, tarring and feathering).
While capital punishment has existed in the United States of America since its inception, by the twentieth century many people in the U.S. came to consider capital punishment per se to be a cruel and unusual punishment. As of 2006, twelve U.S. states have legislatively abolished the death penalty, and others have specifically prohibited certain methods of execution, e.g. by electrocution, by hanging, etc. The Supreme Court has ruled that the application of the death penalty, in certain circumstances — such as the execution of a minor under the age of 18, or of a mentally handicapped person, or for any crime other than murder - is unconstitutional, regardless of the existence of other aggravating circumstances. See also: Eighth Amendment to the United States Constitution. The Court also ruled in 1983 that the imposition of a sentence of life imprisonment without parole for a non-violent felony may consitute cruel and unusual punishment, although a subsequent decision represented a partial retreat from that position.
In the European Union, on the other hand, prohibition of the death penalty has been made a fundamental condition which must either be passed into the law of states hoping to join, or, as in the case of Latvia, its use be subject to a moratorium. The Charter of Fundamental Rights of the European Union (which currently carries no legal standing) states in its second article that "Everyone has the right to life. No one shall be condemned to the death penalty, or executed."
External links
- [Cases in 2003]
- [Cases in 2002]
- [Cases in 2001]
- [Cases in 2000]
- [A list of notable US cases relating to cruel and unusual punishment]
- [American Declaration of the Rights and Duties of Man] (Approved by the Ninth International Conference of American States, Bogotá, Colombia, 1948)
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