Tulsa Attorney BlogOklahoma Lawyer Discusses the 8th Amendment

Eighth Amendment Is Basically Cruel and Unusual Punishment

Video Transcribed: Hey, this is Oklahoma Attorney, Brian Jackson. Today, I want to talk to you about the Eighth Amendment. Eighth Amendment is not a criminal procedural right in the sense, it’s not one that gets talked about as much as the Fourth Amendment, the Fifth Amendment, Sixth Amendment, right to counsel.

But it is an important right, and it is incorporated against the states as well as the federal government to the 14th Amendment. The Eighth Amendment deals with two main issues. The first part is cruel and unusual punishment. And the second is excessive bails and fines. Today, I want to focus mostly on cruel and unusual punishment and what that means.

And there’s a pretty good history of litigation on this subject throughout American history. Most of it is death penalty jurisprudence. In other words, it’s cases where somebody was sentenced to death. And it deals either with the issue of whether the punishment was disproportionate to the crime, or whether the method of carrying out the punishment is cruel and unusual punishment.

Historically, the United States has always had the death penalty for certain crimes. Now, the categories of crimes that will get you a death sentence have contracted over time. And there’s also been procedural safeguards put in place, and it’s become tighter and tighter and tighter on when you can seek the death penalty. And this is all pursuant to the Eighth Amendment. Well, Eighth Amendment, but also due process, excuse me. But as to the Eighth Amendment issue, basically what cruel and unusual punishment is.

The way the court tends to interpret that in terms of modern jurisprudence is that its punishments that are either excessive to the nature of the crime like for example, a recent case is the case of Kennedy vs. Louisiana that was dealing with capital rape. Louisiana was the last state in the union that still had a capital rape statute.8th Amendment

And it was pretty limited circumstances where somebody could draw a death sentence on that because it would involve rape of children and you had to be a multi-time offender. And there were some other aggravating circumstances that came into play.

But the Supreme Court of the United States ultimately found that it was cruel and unusual punishment to execute somebody for rape, even the rape of a child. There’s a case out in Nebraska, this was a State Supreme Court case, but it’s an interesting one, where the electric chair was declared to be cruel and unusual punishment.

Now, the reason I say that that’s interesting is that the Federal Supreme Court has never stricken down the electric chair, in fact, the case of Ray, William Kemmler is still good law. It’s an old case. It goes back into the 1800s, but it’s still good law. The Federal Supreme Court has actually never stricken out a method.

The ninth circuit did strike the gas chamber down for a while, but that actually was overruled later by the Federal Supreme Court in a case out of Arizona where an individual was sentenced to die and at the time Arizona had the gas chamber. So interestingly, the Federal Supreme Court has never stricken down a method.

The Federal Supreme Court has, however, very actively passed restrictions on what types of crimes can warrant a death sentence and the manner in which a death sentence is imposed. Other situations could invoke cruel unusual punishment.

And it’s usually punishments that are that offend modern standards of decency and justice, is what you’re looking at with cruel and unusual punishment. Now, historically, when this was set down and just to briefly digress, what they were really probably talking about is punishments like drawing and quartering, the rack, burning.

Because, at the time these were punishments that were on the books in the United Kingdom, in Great Britain where Great Britain actually had drawing and quartering on the books for treason, all the way up into the 1800s. That was more than likely what the founding fathers were talking about with cruel unusual punishment and stuff like that.

But in modern Eighth Amendment jurisprudence that is, it also can be things like excessive prison sentences. There’s a lot of Eighth Amendment jurisprudence dealing with the death penalty and when it can be applied, when it can’t, there’s the Atkins case, you can’t execute people with mental disabilities. There’s another case where they found that the juvenile death penalty is cruel and unusual punishment.

There’s case law on executing people who are severely mentally ill. There’s case law that specifically spells out the procedure for when you can and can’t impose a death sentence and how you go about imposing a death sentence.

The reason why we have things like filing Bills of Particulars to seek the death penalty in Oklahoma is because of federal case law on the issue of the Eighth Amendment and the due process rights of people charged with capital crimes which subject to the death penalty. You can’t have a mandatory death penalty. There has to be the ability for the jury to enter a lesser sentence, there’s case law on that.

And there’s case law that the jury can’t be given unlimited discretion on the death penalty. And most of this comes under either due process or the Eighth Amendment. The Eighth Amendment would prohibit things like flogging.

There have been arguments about actually under the Eighth Amendment jurisprudence dealing with solitary confinement, which is an interesting topic. It has been found that solitary confinement can actually damage people psychologically and there are those who would argue it’s a form of torture. And there have been Eighth Amendment arguments raised about that.

It’s an interesting area of law, but basically, the right is the government can’t inflict cruel and unusual punishments on you, that you can’t be tortured to death. They can’t execute you for stealing, they can’t execute you for jaywalking.

That’s where you … I mean, those are extreme examples, but that’s what The Eighth Amendment is really talking about. It’s an interesting area of law. You tend to read a lot about it if you look into death penalty jurisprudence. If you are looking for a Oklahoma Criminal Defense Attorney you should go to makelaweasy.com

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