Cruel & Unusual Punishment - Conversation Starter

Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.

A prohibition on "cruel and unusual punishment" first appeared in the English Bill of Rights, in 1689. The ban was adopted by American colonists in some colonial legislation, and was also included in most of the original state constitutions. It became part of the U.S. Bill of Rights in 1791 as the Eighth Amendment to the U.S. Constitution.

In the early years of the republic, the phrase "cruel and unusual punishment" was interpreted as prohibiting torture and particularly barbarous punishments. At the start of the 20th century, the Supreme Court decided in Weems v. United States (1910) that excessive punishments disproportionate to the offense could also be "cruel and unusual."

The Court has consistently ruled that capital punishment itself is not a violation of the Eighth Amendment, but that some applications of the death penalty are "cruel and unusual." For example, the Court has ruled that execution of mentally retarded people is unconstitutionally cruel and unusual, as is the death penalty for people who were under age 18 at the time of their crime.

What limits should the Eighth Amendment place upon punishment, including the death penalty, today? What information should we use to determine the "standards of decency" in today's society? These are some of the questions raised by the discussion starters under the topic of "cruel and unusual punishment."

Starter 1: DNA Proof

Starter2: Trop v. Dulles

Starter 3: Roper v. Simmons