Research Paper CRJ 551

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Cruel and Unusual Punishment Kellye Diaz Professor Coviello CRJ 551 March 22, y Abstract CRUEL AND UNUSUAL PUNISHMENT Diaz 1

The Eighth Amendment of the United States Constitution protects people who have been con- victed of a crime from being punished in a cruel or unusual manner. The topic of cruel and un- usual punishment is controversial and there have been many litigations and legal research in- volved. There are many differing opinions on what is considered cruel and unusual when it comes to the punishment of those charged and convicted with a crime. The purpose of this paper is to examine the history of cruel and unusual punishment, to help identify what punishments may be considered cruel and unusual, and examine the current laws and guidelines that are in place to protect individuals charged and convicted with a crime. We will also examine a few of the United States Supreme Court cases that have helped to protect the rights of those individuals charged with a crime to ensure whatever punishment they receive is not one that would be con- sidered cruel and unusual. Introduction The United States accounts for roughly only five percent of the worlds population how- ever it also accounts for about twenty-five percent of the worlds prison population. This is partly due to the fact that the United States has harsher laws and tougher punishments then some of the CRUEL AND UNUSUAL PUNISHMENT Diaz 2

other countries throughout the world. As the years have gone on and crime rates started to rise, the “tough on crime” policies were enacted making these laws and punishments harsher then they once were. As the population in the United States prisons continues to grow, the treatment of prisoners has also changed. It has become normal practice to use devices like a stun belt or a restraint chair, some of which can cause pain to the prisoner. At one time the use of devices like this would have been considered inhumane (Cusac, 2009). So it begs the question as the whether this type of treatment could be considered cruel and unusual and therefor a violation of the Eighth Amendment of the Constitution. The Eighth Amendment to the United States Constitution was ratified in 1791. The amendments states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This amendment provides protection to the citizens of the United States by prohibiting the federal government from imposing excessively barbarous penalties on criminal defendants. This law is what is known as the Cruel and Unusual Punish- ments Clause. This clause is one of the most important parts of the Eighth Amendment but can also be considered controversial. Determining what is considered cruel and unusual is not an easy task as some people may have a different interpretation or varying opinions of what is con- sidered cruel and unusual (Interpretation: The Eighth Amendment | Constitution Center, n.d.). Making determinations and decisions on what is considered cruel or unusual has become the re- sponsibility of American judges (Bessler J. D., 2018). Depriving a person of their rights is a pun- ishment that could be considered cruel and and unusual so when it comes to the punishment of individuals that have been charged with a crime it is important to ensure that they have the abil- ity to work on their personal development for their mind, body, and spirit so that they are able to CRUEL AND UNUSUAL PUNISHMENT Diaz 3

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live a balanced life just like any other citizen would (Mission, Values, and Identity | Saint Leo University, n.d.). What Is Cruel and Unusual Punishment There have been many litigations, legal research, and controversies around cruel and un- usual punishments, likely due to the fact that defining what is considered a cruel or unusual pun- ishment is not clearly spelled out. Even the justices of the U.S. Supreme Court have differing opinions and views on what is considered cruel or unusual. According to Bessler, Supreme Court Justice Potter Stewart highlighted in 1972 that "death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual” while Justice William O. Douglas in- ferred that "the death penalty inflicted on one defendant is 'unusual' if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices” (2018). However, Supreme Courts Justice Scalia’s opinion is that something is unusual if it something this is considered uncommon or is not of regular practice. The U.S. Supreme Court currently uses what is known as the “evolv- ing standards of decency test” to assess the constitutionality of a punishment while they also re- serve the right to make the final decision and judgement in the case (Bessler J. D., 2018). Some researchers argue that a matter-of-fact approach should be taken when it comes to the “unusual” in cruel and unusual punishments. For example, say that there are 300 million peo- ple living in a number of states that say that one type of punishment is prohibited but there are 50 million people in others states that regularly practice this same type of punishment, then this pun- ishment should be considered unusual since the majority of Americans do not experience it (Bessler J. D., 2018). Sentencing Laws CRUEL AND UNUSUAL PUNISHMENT Diaz 4

The Supreme Court has also put laws into place that limit the type of punishment for cer- tain crimes or for certain conditions. Some of the limit from these laws include: the execution of non-homicidal offenders, those who have a lower culpability role in the commission of the crime, offenders that are under age eighteen, the insane, and the intellectually disabled; and life- without-parole sentences for juveniles, whether for homicide or non- homicide offenses (Bessler J. D., 2018). In addition to these laws, there are sentencing guidelines in place that place limits on the amount of time that an offender can be sentenced for. There are also certain crimes that are committed that require the federal courts to use mandatory minimum sentencing for offend- ers. Certain crimes like those that fall under 18 USC § 924(c), have their own separate manda- tory minimum sentences (Booth, 2010). In the case of United States v Booker, following the federal sentencing guidelines the jury authorized sentencing Booker to 210-to-262 months in prison. However, at the sentencing hear- ing the judge found additional evidence of which the findings authorized a sentence between 360 months to life so the judge sentenced Booker to 30 years instead of the 21-year and 10-months based on what the jury proved. It was decided that this sentence conflicted with the current guidelines and was remanded to resentence him following the guidelines of what was proved to the jury during trial (United States V. Booker, 543 U.S. 220 (2005), n.d.). The case of United States v Booker helped to expand the federal judicial systems discretion when sentencing by making the current sentencing guidelines a recommendation rather than a requirement. However, this case only applies to the guidelines used and does not apply to the crimes that have a statutory mandatory minimum sentence themselves (Booth, 2010). As mentioned earlier, there are laws in place that protect offenders that are under age eighteen when it comes to sentencing. In the case of Roper V. Simmons , the offender Simmons CRUEL AND UNUSUAL PUNISHMENT Diaz 5

planned and committed a capital murder when he was seventeen years old. His sentencing oc- curred after he had turned eighteen where he was sentenced to death. Simmons appealed the sen- tencing and sought for state and federal post-conviction relief but was denied. The lower court stated that in Atkins v. Virginia , the Eighth Amendment that is applicable to the States through the Fourteenth Amendment, prohibits the execution of a mentally retarded person. Simmons then filed another petition for state post-conviction relief arguing that under Atkins the Constitution prohibits the execution of a juvenile who was under the age of eighteen when a crime was com- mitted. The Missouri State Supreme Court agreed and reversed the death penalty sentence and instead imposed the sentence of life imprisonment without the eligibility for release (Roper V. Simmons, 543 U.S. 551 (2005), n.d.). Cruel and Unusual Punishment in U.S. Prisons For around 175 years following the ratification of the United States Eight Amendment, nothing was being done by the federal government to regulate prison conditions in the United States or to recognize the rights of its prisoners. At the time, the federal government relinquished those matters to prison officials allowing them to decide how to operate the prisons and the treat- ment of its prisoners. However, in the mid-1960s the federal courts recognized this needed to change and, from 1965 to 1994, they made laws for governing conditions in the prisons. During this period, the conditions in the prisons in forty-eight states were declared unconstitutional. Now we have case laws in place that help to decide the outcome of a case if a prisoner is to file a grievance against a prison official. However, the academics involved in studying the prison sys- tem have been left confused in the role the federal courts will play in the future of the prison sys- tems (Kowaluk & Anderson, 2004). CRUEL AND UNUSUAL PUNISHMENT Diaz 6

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In the case of Helling v. McKinney , McKinney was a Nevada state prisoner who filed a suit against the prison officials claiming that involuntary exposure to environmental tobacco smoke (ETS) from his cellmate's and other inmates' cigarettes posed an unreasonable risk to his health therefor, he was being subjected to cruel and unusual punishment in violation of his Eighth Amendment rights. He argued that prison officials were acting with a deliberate indiffer- ence to his future health from his exposure to the tobacco smoke. The U.S. Supreme Court held that if a reasonable claim could be proved that there could be grounds for relief under the Eighth Amendment prohibition of cruel and unusual punishment (Helling V. McKinney, 509 U.S. 25 (1993), n.d.). Cruel and Unusual Punishment for Juvenile Offenders As previously mentioned there are laws in place that prevent juvenile offenders from re- ceiving the death penalty or life without parole sentences, however there are certain cases where juvenile offenders are tried as adults. The case of Miller V. Alabama is an example of this. This case was about two fourteen year old boys who during the robbery of a video store, shot and killed the store clerk. The two were subsequently charged as adults and sentenced to life in prison without the possibility of parole. The case went to the U.S. Supreme Court who over- turned the ruling as a life without parole sentence violates the Eighth Amendment for cruel and unusual punishment (Miller V. Alabama, 567 U.S. 460 (2012), n.d.). There are however still thousands of juvenile offenders across the United States who are imprisoned in adult facilities with adults offenders. Juvenile offenders that are being housed with adults in adult facilities face many dangers. Some of these dangers include being beaten, raped, or forced to perform other sexual activities (Wood, 2012). CRUEL AND UNUSUAL PUNISHMENT Diaz 7

Wood mentions the case of a 16 year old boy named Rodney who was convicted of sec- ond-degree arson after setting a neighborhood dumpster on fire which resulted in less than $500 in damage and was subsequently sent to do his time in an adult prison. After entering the prison the boy was repeatedly raped and beaten. He begged prison officials to be moved out of general population but was returned to the same unit after receiving medical treatment where the beat- ings and rapes continued. After prison officials failed to listen to his concerns and spending on seventy-five days in the adult prison he hung himself in his cell (2012). This is only one of many cases where juvenile offenders are subjected to cruel and unusual punishment. One of the biggest issues of housing juveniles in adult facilities is the fact that juveniles are not done growing or maturing. Juveniles are still developing cognitively, emotionally, and physically and when they are incarcerated in adult facilities their specific needs are not typically met as they have less access to rehabilitative programs and educational services than they would have if they were housed in a juvenile facility. The employees in adult facilities also do not have the training for working with juveniles. They also face the risk of being harmed physically or sexually assaulted as already mentioned. Juveniles as young as the age of 13 can be housed in adult facilities. There are some states where they are housed separately but this is not the case in all states so they are often housed with adults. Because of this, there is the argument that housing juveniles in adult facilities is a violation of the Eighth Amendment (Wood, 2012). Death Penalty The death penalty is perhaps on of the most controversial forms of punishment that is used in the United States. Though this form of punishment is reserved for the most heinous of crimes, there are many people that would still say that this type of punishment is considered cruel and unusual. The United States has a constantly evolving “standards of decency” that is CRUEL AND UNUSUAL PUNISHMENT Diaz 8

used to determine what constitutes a punishment as being cruel and unusual. The U.S. Supreme Court considers the outcomes of several capital trials as “objective indicia” when determining constitutionality of the death penalty. Most of the recent research involving the constitutionality of the death penalty has focused on issues like the execution of intellectually disabled defendants and juveniles, the proportionality of the death penalty for the crime of child rape, and the consti- tutionality of the method of execution rather than capitol punishment as a whole (Cover, 2016). According to Cover, in 2015 two of the Supreme Court Justices asked the Court to reconsider the constitutionality of the death penalty and expressed the belief that “the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishment”(2016). In her research, Cover also examined the case of convicted Boston Marathon bomber Dzhokhar Tsarnaev since he had received the death penalty to determine how many Massachu- setts and Boston residents agreed with this verdict (2016). In examining this case Cover found that even though 12 jurors agreed that he should be sentenced to death, that less than twenty per- cent of Massachusetts residents and only fifteen percent of Boston residents believed that he should be executed and in general there was less than a third of Massachusetts residents and only a quarter of Boston residents who supported the death penalty under any circumstances for heinous crimes (2016). Though other states may have different views on when someone should be sentenced to the death penalty, this highlights one case where a person convicted of a heinous crime was sentenced to death even though a majority of the states residents do not agree with this form of punishment. Conclusion The cruel and unusual punishment clause of the United States constitution is one of the most important parts of the Eighth Amendment as it protects the rights of people that have been CRUEL AND UNUSUAL PUNISHMENT Diaz 9

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charged with a crime. It is something that needs to constantly evolve as our society grows and changes. For many years this was not the case and the courts took a step back and let prison offi- cials determine how to punish prisoners and operate their facilities. After this went on for a num- ber of years, then finally the U.S. courts stepped in to set laws and make guidelines to ensure that even those that have been charged and convicted of a crime were afforded their rights under the constitution. United States Supreme Court cases like Helling v. McKinney, Miller v. Alabama, Roper v. Simmons, and United States v. Booker have helped to protect the rights of those individ- uals charged with a crime to ensure whatever punishment they receive is not one that would be considered cruel and unusual. Although it is not easy to define exactly what is considered cruel or unusual and there are certainly differing opinions when it comes to punishing those that have been convicted of a crime, laws have been enacted to ensure that these individuals rights are pro- tected and the punishment that they receive is fair for the crime they have committed. References Bessler J. D. (2018). The Concept of “Unusual Punishments” in Anglo-American Law: The Death Penalty as Arbitrary, Discriminatory, and Cruel and Unusual. Northwestern Journal of Law and Social Policy , 13 (4), 307–416. https://saintleo.idm.oclc.org/login? url=https://www.proquest.com/scholarly-journals/concept-unusual-punishments-anglo- american-law/docview/2069492750/se-2 Booth, M. (2010). Sentencing Discretion at Gunpoint: How to Think about Convictions Underlying § 924(c) Mandatory Minimums. University of Chicago Law Review , 77 (4), 3. https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi? article=5514&context=uclrev Cover, A. (2016). The Eighth Amendment’s Lost Jurors: Death Qualification and Evolving Standards of Decency. Indiana Law Journal , 92 (1), 3–3. https://web-s-ebscohost- com.saintleo.idm.oclc.org/ehost/pdfviewer/pdfviewer?vid=0&sid=070356bb-0668- 466b-86cb-21bf9ca517e1%40redis Cusac, A. (2009). Cruel and unusual : The culture of punishment in america . Yale University Press. CRUEL AND UNUSUAL PUNISHMENT Diaz 10

Helling v. McKinney, 509 U.S. 25 (1993) . (n.d.). Justia Law. https://supreme.justia.com/cases/federal/us/509/25/ Interpretation: The Eighth Amendment | Constitution Center . (n.d.). National Constitution Center – constitutioncenter.org. https://constitutioncenter.org/the-constitution/amendments/amendment-viii/clauses/103 Kowaluk, G., & Anderson, J. F. (2004). The making of the law prohibiting ‘Cruel and unusual’ punishment in prisons: Using autopoietic theory to reconstruct the Eighth Amendment. Criminal Justice Studies , 17 (2), 141–169. https://doi.org/10.1080/0888431042000235002 Miller v. Alabama, 567 U.S. 460 (2012) . (n.d.). Justia Law. https://supreme.justia.com/cases/federal/us/567/460/ Mission, values, and identity | Saint Leo University . (n.d.). https://www.saintleo.edu/about/mission-values Roper v. Simmons, 543 U.S. 551 (2005) . (n.d.). Justia Law. https://supreme.justia.com/cases/federal/us/543/551/ United States v. Booker, 543 U.S. 220 (2005) . (n.d.). Justia Law. https://supreme.justia.com/cases/federal/us/543/220/ Wood, A. (2012). CRUEL AND UNUSUAL PUNISHMENT: CONFINING JUVENILES WITH ADULTS AFTER GRAHAM AND MILLER. Emory Law Journal , 61 (6), 1445–1492. https://web-p-ebscohost-com.saintleo.idm.oclc.org/ehost/pdfviewer/ pdfviewer?vid=1&sid=3b883864-d08d-4ebf-8ac6-4a7825fe2821%40redis CRUEL AND UNUSUAL PUNISHMENT Diaz 11

Research Paper CRJ 551

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