Constitutional Question of Cruel and Unusual Punishment and the Death Penalty - Research Paper Example

The question as to whether the death penalty is a ‘cruel and unusual punishment” within the context of the 8th Amendment is often the underpinning issue of many cases appealed to the US Supreme Court by appellants who were convicted and sentenced to death by the trial courts. The clause “cruel and unusual punishment” first appeared in the 1686 English Bill of Rights and was adopted by the Commonwealth of Virginia Declaration of Rights. Its inclusion in the federal Bill of Rights was proposed by James Madison, who himself hailed from Virginia.

Although it was successfully incorporated into the 8th Amendment, its exact meaning was not clearly explained nor its relevance in the American setting fully understood. Under English law, the clause was meant to limit the English courts from imposing punishments that were too barbaric and cruel as was the practice of courts during the reign of the House of Stuart. Punishments such as drawing and quartering, boiling the convicts alive, or crushing them with heavy objects were just some of the barbaric punishments that the English Courts in the Stuart era employed.

In the American setting, the “cruel and unusual punishment” clause was not much of an issue prior to the 20th century considering that the barbaric practices of the early English courts were unheard of. The modes of execution in the US include hanging, firing squad, gassing, electric chair, and just recently, lethal injection. Although some of these modes of execution are more painful than others, they are not considered barbaric and cruel punishments.Scrutiny of US case law on the matter reveals that the death penalty is not a “cruel and unusual punishment” within the 8th Amendment context, and yet, sometimes it is.

The Court has declared that it does not per se infringe upon the 8th Amendment, and yet has also ruled in some cases that its imposition is “cruel and unusual” punishment. It depends on the circumstances of the case and perhaps, the perspective of the Court at the time a death penalty case is being heard. The first time that the clause was made ground in an appeal was not a death penalty case, but it was nevertheless, significant because it was the first time the US SC expanded the meaning of the clause to cover legislative acts as well as declared that punishment not in proportion to the crime is “cruel and unusual.

" This was the Weems v US case in 1917, where the appellant, a disbursing officer in the Philippines, then a US territory, was convicted of falsifying public documents. He was sentenced to suffer 15 years of hard labor in prison in chains as well as imposed civil and political disabilities. He contended that this was “cruel and unusual punishment” because it was disproportionate to the crime he committed. The Court agreed. It was, however, in the latter part of the 20th century that the US SC had to contend with several challenges from various death penalty cases that invoked “cruel and unusual punishment” to nullify the death penalty sentences handed down in the trial courts.

This sudden enthusiasm was perhaps spurred by the surge of abolitionist movements around the world which saw more than 60 countries outlawing their death penalty laws from the 1960s to the end of the 20th century.