Cruel and Unusual Punishment Amendment: Definition & Examples

Instructor: Jason Nowaczyk
The following lesson covers a section of the 8th Amendment of the United States Constitution regarding cruel and unusual punishment. A short quiz will follow the lesson to check your understanding.


Imagine when you were young. Chances are that if you did something wrong or broke a rule, you would have been punished either by a parent or guardian, or perhaps by someone at school. Say, for instance, that the rule you broke was eating a cookie before dinner when your parents expressly forbid the eating of sweets before dinner. As a result, the punishment was a harsh spanking followed by being sent to your room without dinner and without the ability to leave the room. By some people's standards, especially those who are much older, this method of punishment is perfectly acceptable. Contemporary parents, however, might find that this punishment is much too harsh in relation to the 'crime.'

The 8th Amendment of the United States Constitution states that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. What constitutes cruel and unusual punishment is not starkly defined, but in general, this clause encompasses particular punishments considered inhumane by society. In other words, the cruel and unusual punishment clause prevents the government from imposing a penalty that is either barbaric or far too severe for the crime committed.

The Origin of Cruel and Unusual Punishment

In medieval England and even later in colonial America, punishments for certain crimes could have included being burned in hot oil, crucifixion, loss of limbs, or being drawn and quartered. In modern American times, the United States has had no less than five ways in which you could be put to death.

The original ban on cruel and unusual punishment is thought to have come from the English Declaration of Rights of 1689, which was later adopted by the United States framers of the Constitution. However, the vagueness of the term cruel and unusual has led to some intense debate in the Supreme Court over the years.

Punishment by Burning at the Stake
Portrait Burning at the Stake

Determining 'Cruel and Unusual'

The Supreme Court takes into account a few factors when determining what cruel and unusual punishment means. These include contemporary ideals of a society, proportionality, arbitrariness, and the characteristics of the criminal.

Contemporary Societal Ideals

Clearly, punishment that is considered usual, or expected, today could have been different in another time period. During the Salem Witch trials, it was common for offenders accused of practicing witchcraft to be hung, while today, many people find that practice barbaric. To solve this issue, the Supreme Court ruled in 1958, in the case of Trop v. Dulles, that the notion of cruel and unusual should change over time to reflect a society's 'evolving sense of decency.'

Proportionality and Arbitrariness

You may have heard the question, 'Does the punishment fit the crime?' Imagine if you were given a life sentence for jaywalking or the death penalty for speeding. Jaywalking and speeding are, in fact, crimes, but we would consider those sentences excessive compared to the seriousness of the crimes. Courts try to ensure that the severity of the punishment is comparable to the crime by looking to the sentences for other criminals in the state where the crime occurred and the sentences for the same crime in other states. In other words, the punishment cannot be arbitrarily given. However, just because a punishment is severe does not automatically make it unconstitutional. The 8th Amendment forbids only grossly excessive penalties.

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