Sherry F. Colb

Evaluating the Eighth Amendment's Ban on Only Cruel and Unusual Punishments

By SHERRY F. COLB
Wednesday, September 1, 2010

A little over two weeks ago, a man and woman in Afghanistan were reportedly stoned to death for marrying each other without their parents' blessing. Stoning involves partly burying the condemned prisoner in the ground, and then having the community throw stones at her until she dies.

Coverage of the public execution in Afghanistan was, not surprisingly, very critical. Stoning as the penalty for any crime – let alone a "crime" that, in much of the world, is actually a fundamentally-protected right to choose a spouse without parental input – likely struck many as sadistic, monstrous, and depraved in its cruelty. As a matter of frequency, moreover, the penalty is quite unusual.

In this column, I will consider how and whether the fact that a punishment like stoning is "unusual" bears on its legitimacy. In other words, I will examine the wisdom of including the words "and unusual" in the Eighth Amendment prohibition against cruel and unusual punishments.

"Cruel" Punishments: Some Examples

In considering whether a penalty is sufficiently severe or disproportionate to violate the Eighth Amendment, judges and scholars tend to focus on whether it is "cruel." Subjecting a convict to the deliberate infliction of excruciating pain would fail Eighth Amendment scrutiny because it involves a "torturous punishment." Eight years ago, for example, the Supreme Court held in Hope v. Pelzer that, if proved, the decision of prison officials to tie a convict to a hitching post for hours, without a shirt, in the hot sun, would violate the Eighth Amendment.

At the same time, however, it is also the case that tying prisoners to hitching posts, drawing and quartering them, and burning them at the stake are all quite unusual official penalties in the United States. The last two, in fact, never occur. Does their rarity contribute anything to the analysis? In other words, is it not bad enough that a punishment be cruel, if it is not also unusual?

The Requirement that a Punishment Must Be "Unusual," as a Constraint on Judicial Discretion

One response to this question is that if an apparently cruel penalty is also unusual, then its infrequency helps constrain the discretion of a judge who would otherwise be able to perform an open-ended investigation into whether he believes that the penalty is sufficiently cruel to fall outside the limits of legitimate, constitutionally-permissible punishment. Every punishment is cruel, to some degree, as it is meant to take away something that is worth a great deal to the convict. If a penalty were innocuous, both physically and emotionally, it would not properly qualify as a "punishment" at all. From this perspective, "cruel" really means "too cruel" and represents a normative judgment (How cruel is too cruel?) that is most likely to be accurate if made by reference to community consensus, rather than one's own gut feeling.

If a seemingly cruel penalty is extremely unusual, then a judge can, with confidence, classify the penalty as falling beyond the pale. It is not just the particular judge or judges on a panel who find the punishment unpalatable, in other words. It is most of the relevant population.

Conversely, if we are personally repelled by a practice, we might still come to accept it, once we learn that many people we know engage in and endorse the same practice. Social acceptance might raise doubts about our own outrage, on the theory that "If everyone is doing it, how bad can it be?" A particular individual judge might, of course, be ahead of her time and recognize that a punishment truly is wrong, before much of society has come to that conclusion. On the other hand, she might simply be mistaken in condemning a particular punishment, and the frequency of that punishment might suggest that she is too sensitive, on this matter, to see that what appears to her excessively cruel is, in fact, just cruel enough to accomplish the objective of retribution or deterrence.

Another related possibility is that there really is no such thing as a punishment's being excessively cruel as a matter of metaphysical truth. The only truth in this area is that a particular punishment does or does not inflict suffering, and that some punishments (such as drawing and quartering) ordinarily inflict much more suffering than others (such as the firing squad) do. If we find this approach convincing, then we do not simply doubt our own capacity to discern whether a punishment is excessively cruel; we also doubt that such a concept has any content, beyond the infrequency with which a particular, painful punishment is imposed or permitted by the surrounding society. Morality, on this account, is relative to culture, a relativity that makes the reference to "unusual" entirely appropriate.

The stoning penalty is administered by the Taliban in parts of Afghanistan (and sometimes in other countries, including Saudi Arabia, Sudan, and Somalia as well). This method of execution is unusual (as a matter of both the degree of suffering inflicted and the involvement of the condemned person's family and neighbors in the killing process), and observers around the world can therefore say with some confidence that the punishment is excessively cruel, in that the consensus either confirms or actually defines its wrongfulness. If a state in the U.S. attempted to institute the punishment of stoning, then that punishment would accordingly (and without a doubt) fail under Eighth Amendment scrutiny.

The Cost of Following the Herd

The strength of requiring that penalties be "unusual" to fail Eighth Amendment scrutiny, however, might also be its weakness. If we believe that some punishments really are excessive, by virtue of their absolute cruelty or their disproportionate severity relative to some crimes, then we ought to be able to say as much, regardless of what the majority says or does. Indeed, the dissenting moral voice is part of the very purpose of enshrining some principles in the Constitution, rather than leaving all decisions up to popular legislative will.

By requiring that a punishment be rare in order to be unconstitutional, in other words, we allow a majority of states to legitimize what a majority of citizens (or legislators) of a particular state cannot. Though a judge might be mistaken in deeming a penalty excessively cruel, the judge also instead be correct, and it would be a grave injustice, in that instance, for the punishment to be imposed. Taking this approach, one might say that the stoning penalty is and always has been wrong, regardless of how many countries and people failed to realize as much in the past or present, just as human slavery is and always has been wrong, even before most people recognized it as such.

As one who agrees with the above critique of "unusual," I have my own account of the rule of rarity in the Eighth Amendment. Though this is not a textually-plausible explanation, I would propose that the "unusual" portion of "cruel and unusual" punishment serves more as a prediction than a limitation. As time goes on, the prediction goes, people become increasingly civilized and decent, and they often determine that what was once understood as acceptable practice later fails the test of civilization. People have difficulty, of course, in seeing what they are presently doing as outrageous, when almost everyone around them is doing it too. As members of the public, judges too will generally fall prey to this myopia. Humans are a very social species, and the people who surround us can effectively blind us to injustice that later, and rightly, seems completely and glaringly obvious.

We see this phenomenon quite well in the animal-based food and clothing that most people consume. Many of us are capable of recognizing that it is cruel to mutilate and slaughter birds, mammals, and fishes. When we learn that someone like Michael Vick is running a dog-fighting operation, we can justly condemn his actions as abusive and properly criminal, because they cause terrible suffering and death. But most of us fail to see that what we pay others to do on our behalf to chickens, cows, pigs, sheep, turkeys, fishes, and other animals, with almost every meal and pair of shoes that most of us consume, is equally cruel, causes equally terrible suffering and death, and is just as deserving of our condemnation.

The reason for our failure is that what we do to nonhuman animals with our purchases is not "unusual" at all, just as human slavery and extremely torturous executions were once commonplace. One can hope, however, that as increasing numbers of people become vegan and refuse to participate in barbarism, cruelty toward animals can become "unusual" as well. We can then consign the practice of consumer-motivated animal torture and slaughter to the waste bin of history, along with human slavery and the stoning penalty. Newspapers some day would accordingly report on the rare instance when this practice occurs as a deviation that rightly and finally shocks the collective conscience.


Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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