Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The state of Virginia had adopted this italicized language of the English Bill of Rights in the Virginia Declaration of Rights of 1776, and the Virginia convention that ratified the U.S. Constitution recommended in 1788 that this language also be included in the federal Constitution. James Madison changed "ought" to "shall", when he proposed the amendment to Congress in 1789.
A hundred years before its approval by the Congress, England’s declaration against "cruel and unusual punishments" was approved by Parliament in February 1689, and was read to King William III and his wife Queen Mary II on the following day. Members of Parliament then explained in August 1689 that “the Commons had a particular regard…when that Declaration was first made” to punishments like the one that had been inflicted by the King's Bench against a perjurer named Titus Oates. A few months after that explanation, Parliament enacted the English Bill of Rights into law, in December 1689. Titus Oates was a fixture on the London pillory circuit during the reign of King James II (father of Queen Mary II), and Oates has become a fixture of the U.S. Supreme Court’s Eighth Amendment jurisprudence.
In England, the "cruel and unusual punishments" clause was a limitation on the discretion of judges, according to the great treatise of the 1760s by William Blackstone entitled Commentaries on the Laws of England:
[H]owever unlimited the power of the court may seem, it is far from being wholly arbitrary; but it's discretion is regulated by law. For the bill of rights has particularly declared, that excessive fines ought not to be imposed, nor cruel and unusual punishments inflicted: (which had a retrospect to some unprecedented proceedings in the court of king's bench, in the reign of king James the second)....
Virginians such as George Mason and Patrick Henry wanted to ensure that this restriction would also be applied as a limitation on Congress. Mason warned that, otherwise, Congress may “inflict unusual and severe punishments.” Henry made the same point: "What has distinguished our ancestors?--That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany.... Ultimately, Henry and Mason prevailed, and the Eighth Amendment was adopted.
According to the Supreme Court, the Eighth Amendment forbids some punishments entirely, and forbids some other punishments that are excessive when compared to the crime, or compared to the competence of the perpetrator.
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.
The case of Weems v. United States, , marked the first time that the Supreme Court exercised judicial review to overturn a criminal sentence as cruel and unusual. The Court overturned a punishment called cadena temporal, which mandated "hard and painful labor", shackling for the duration of incarceration, and permanent civil disabilities. This case is often viewed as establishing a principle of proportionality under the Eighth Amendment. However, others have written that "it is hard to view Weems as announcing a constitutional requirement of proportionality.
In Trop v. Dulles, , the Supreme Court held that punishing a natural-born citizen for a crime by taking away his citizenship is unconstitutional, being "more primitive than torture" because it involved the "total destruction of the individual's status in organized society".
In Robinson v. California, the Court decided, 6-2, that a California law authorizing a 90-day jail sentence for "be[ing] addicted to the use of narcotics" violated the Eighth Amendment, as narcotics addiction "is apparently an illness", and California was attempting to punish people based on the state of this illness, rather than for any specific act. The Court wrote: "To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold."
Robinson was the first case in which the Supreme Court applied the Eighth Amendment against the state governments, via the Fourteenth Amendment. Before Robinson, the Eighth Amendment had only been applied against the federal government. Justice Potter Stewart's opinion for the Robinson Court held that "infliction of cruel and unusual punishment [is] in violation of the Eighth and Fourteenth Amendments." The framers of the Fourteenth Amendment, such as John Bingham, had discussed this subject:
[M]any instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, "cruel and unusual punishments" have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none.
Traditionally, the length of a prison sentence was not subject to scrutiny under the Eighth Amendment, regardless of the crime for which the sentence was imposed. It was not until the case of Solem v. Helm, , that the Supreme Court held that incarceration, standing alone, could constitute cruel and unusual punishment if it were "disproportionate" in duration with respect to the offense. The Court outlined three factors that were to be considered in determining if the sentence is excessive: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." The Court held that in the circumstances of the case before it and the factors to be considered, a sentence of life imprisonment without parole for cashing a $100 check on a closed account was cruel and unusual.
However, in Harmelin v. Michigan, , a fractured Court retreated from the Solem test and held that for noncapital sentences, the Eighth Amendment only constrains the length of prison terms by a "gross disproportionality principle." Under this principle, the Court sustained a mandatory sentence of life without parole imposed for possession of 650 grams or more of cocaine. In Harmelin, Justice Scalia, joined by Chief Justice Rehnquist, said "the Eighth Amendment contains no proportionality guarantee", and that "what was 'cruel and unusual' under the Eighth Amendment was to be determined without reference to the particular offense." Scalia wrote "If 'cruel and unusual punishments' included disproportionate punishments, the separate prohibition of disproportionate fines (which are certainly punishments) would have been entirely superfluous."
In Coker v. Georgia, , the Court declared that the death penalty was unconstitutionally excessive for rape of a woman and, by implication, for any crime where a death does not occur. The majority in Coker stated that "rape by definition does not include the death of or even the serious injury to another person." The dissent countered that the majority "takes too little account of the profound suffering the crime imposes upon the victims and their loved ones." The dissent also characterized the majority as "myopic" for only considering legal history of "the past five years."
On June 25, 2008, in Kennedy v. Louisiana, the Court returned to the subject of its decision in Coker, and ruled that the death penalty was excessive for child rape "where the victim’s life was not taken." The Supreme Court failed to note a federal law providing for the death penalty in cases of child rape. On October 1, 2008, the Court declined to reconsider its opinion in this case, but did amend the majority and dissenting opinions in order to acknowledge that federal law. Justice Scalia (joined by Chief Justice Roberts) wrote in dissent that "the proposed Eighth Amendment would have been laughed to scorn if it had read 'no criminal penalty shall be imposed which the Supreme Court deems unacceptable.'
The first significant general challenge to capital punishment that reached the Supreme Court was the case of Furman v. Georgia, . In a 5-4 decision, the Supreme Court overturned the death sentences of Furman for murder, as well as two other defendants for rape. Of the five justices voting to overturn the death penalty, two found capital punishment itself to be unconstitutionally cruel and unusual, and three found that the statutes at issue were implemented in a random and capricious fashion, discriminating against blacks and the poor. Furman v. Georgia did not hold — even though it is sometimes claimed that it did — that capital punishment is per se unconstitutional.
States with capital punishment rewrote their laws to address the Supreme Court's decision, and the Court then revisited the issue in a murder case: Gregg v. Georgia, . In Gregg, the Court found, in a 7-2 ruling, that Georgia's new death penalty laws passed Eighth Amendment scrutiny: the statutes provided a bifurcated trial in which guilt and sentence were determined separately; and, the statutes provided for "specific jury findings" followed by state supreme court review comparing each death sentence "with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate." Because of the Gregg decision, executions resumed in 1977.
Some states have passed laws imposing mandatory death penalties in certain cases. The Supreme Court found these laws to be unconstitutional under the Eighth Amendment, in the murder case of Woodson v. North Carolina, , because these laws remove discretion from the trial judge to make an individualized determination in each case. Other statutes specifying factors for courts to use in making their decisions have been upheld. Some have not: in Godfrey v. Georgia, , the Supreme Court overturned a sentence based upon a finding that a murder was "outrageously or wantonly vile, horrible, and inhuman," as it deemed that any murder may be reasonably characterized in this manner. Similarly, in Maynard v. Cartwright, , the Court found that an "especially heinous, atrocious or cruel" standard in a homicide case was too vague. However, the vagueness of this language depends on how lower courts interpret it. In Walton v. Arizona, , the Court found that the phrase "especially heinous, cruel, or depraved" was not vague in a murder case, because the state supreme court had expounded on its meaning.
Generally speaking, the Court has held that death penalty cases require extra procedural protections. As the Court said in Herrera v. Collins, , which involved the murder of a police officer, "the Eighth Amendment requires increased reliability of the process..."
In Rummel v. Estelle, , the Court upheld a life sentence with the possibility of parole for fraud crimes totaling $230.
In Harmelin v. Michigan, , the Court upheld a life sentence without the possibility of parole for possession of 672 grams of cocaine.
In Lockyer v. Andrade, , the Court upheld a 50 years to life sentence with the possibility of parole imposed under California's three-strikes law when the defendant was convicted of shoplifting videotapes worth a total of $150 fine.
The "evolving standards" test is not without its scholarly critics. For example, Professor John Stinneford asserts that the "evolving standards" test misinterprets the Eighth Amendment:
The Framers of the Bill of Rights understood the word “unusual” to mean “contrary to long usage.” Recognition of the word’s original meaning will precisely invert the “evolving standards of decency” test, and ask the Court to compare challenged punishments with the longstanding principles and precedents of the common law, rather than shifting and nebulous notions of “societal consensus” and contemporary “standards of decency.”
Stinneford suggests that the Supreme Court's jurisprudence should evolve away from the "evolving standards" test, but meanwhile the Court continues to use it.