Cruel and Unusual Punishment Throughout the Ages.

The Eighth Amendment to the U.S. Constitution specifically outlaws "cruel and unusual" punishment. But courts have had difficulties throughout the years defining exactly what that means. The words "cruel and unusual punishment" first appear in the English Bill of Rights 1689. But as early as 1879, the U.S. Supreme ruled (in Wilkerson v. Utah) that being emboweled alive, beheaded, and quartered and publicly dissected and burned alive were "...in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution."

The United States Supreme Court ruled in 1969 "The term cannot be defined with specificity. It is flexible and tends to broaden as society tends to pay more regard to human decency and dignity and becomes, or likes to think that it becomes, more humane. Generally speaking, a punishment that amounts to torture, or that is grossly excessive in proportion to the offense for which it is imposed, or that is inherently unfair, or that is unnecessarily degrading, or that is shocking or disgusting to people of reasonable sensitivity is a 'cruel and unusual' punishment. And a punishment that is not inherently cruel and unusual may become so by reason of the manner in which it is inflicted.", U.S. Dist. Crt. for E. Disr. of AR (citing Holt v. Sarver, 1970). And in 1971 with the Attica prison riot, they ruled "the beatings, physical abuse, torture, running of gauntlets, and similar cruelty-was wholly beyond any force needed to maintain order... Although lawful incarceration, as it has often been said, deprives the prisoners of many rights enjoyed by others (e. g., travel, choice of occupation, privacy, and association with others)... they are still entitled to protection against cruel and unusual punishment." (Inmates, Attica Correctional Fac v. Rockefeller, 1971).

Originalists insist that we should only use the standards that were in place in 1791 when the 8th Amendment was ratified. But life was brutal back then. And even things like free speech and equal rights would be defined differently.

Speaking of original intent. Really no one is a true originalist. And as we see with DC v. Heller, the Supreme Court conservatives will often reinterpret the Constitution when it suits their purpose (the Second Amendment was never meant to apply to private conduct). And in McDonald v. City of Chicago (2010), the Supreme Court found that the right of an individual to "keep and bear arms", as protected under the Second Amendment, is incorporated by the due process clause of the Fourteenth Amendment. This has never been done before in US history.

Thoughts?

 

Robert-François Damiens - Wikipedia

The last person executed by dismemberment.