Cruel and unusual punishment

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Cruel and unusual punishment is a phrase describing criminal punishment which is considered unacceptable due to the suffering or humiliation it inflicts on the condemned person. These exact words were first used in the English Bill of Rights in 1689, and later were also adopted by the Eighth Amendment to the United States Constitution (1787) and British Slavery Amelioration Act (1798).

Very similar words ('No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment') appear in Article Five of the Universal Declaration of Human Rights adopted by the United Nations General Assembly (A/RES/217, December 10, 1948). The right, under a different formulation ('No one shall be subjected to [...] inhuman or degrading treatment or punishment.') is found in Article Three of the European Convention on Human Rights (1950). The Canadian Charter of Rights and Freedoms (1982) also contains this fundamental right in section 12 and it is to be found again in Article Four (quoting the European Convention verbatim) of the Charter of Fundamental Rights of the European Union (2000). It is also found in Article 16 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and in Article 40 of the Constitution of Poland.

The Constitution of the Marshall Islands, in the sixth section of its Bill of Rights Bold text'Italic text'Italic text'Italic text'Italic text'Italic text'Italic text''''''''''''(art.2), prohibits "cruel and unusual punishment", which it defines as: the death penalty; torture; "inhuman and degrading treatment"; and "excessive fines or deprivations".

The Eighth Amendment to the United States Constitution states that "cruel and unusual punishments [shall not be] inflicted". The general principles the United States Supreme Court relied on to decide whether or not a particular punishment was cruel and unusual were determined by Justice William Brennan. In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."

• The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," especially torture.
• "A severe punishment that is obviously inflicted in wholly arbitrary fashion."
• "A severe punishment that is clearly and totally rejected throughout society."
• "A severe punishment that is patently unnecessary."

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. In this way the United States Supreme Court "set the standard that a punishment would be cruel and unusual [,if] it was too severe for the crime, [if] it was arbitrary, if it offended society's sense of justice, or if it was not more effective than a less severe penalty."

History

For most of recorded history, capital punishments were often deliberately painful. Severe historical penalties include the breaking wheel, boiling to death, flaying, disembowelment, crucifixion, impalement, crushing, stoning, execution by burning, dismemberment, sawing, scaphism, or necklacing.

See also

• Capital punishment
• Security of person - an expanded right against less lethal conduct.
• Eighth Amendment to the United States Constitution
• Section Twelve of the Canadian Charter of Rights and Freedoms
• Prison rape, Rape and punishment

References

• History of the Death Penalty

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