Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport

©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ Chapter 7 The Constitutional Prohibition Against Cruel and Unusual Punishment UNIT TWO: CRIMINAL PROCEDURE

Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ  Introduction and Historical Background In ancient Rome a condemned prisoner did battle with wild beasts in arenas while the public watched.  Punishment in England was often equally harsh and public.  Dozens of prisoners were hung at a time for offenses ranging from murder to horse thievery and house breaking. The criminal law was popularly known as the “Bloody Code”.  An alternative to hanging or a short prison stay was the practice of “transportation”. Transportation was a form of banishment or exile. Against this background examine the Constitution’s prohibition against “cruel and unusual punishment. The Eighth Amendment is a part of the Bill of Rights, added to the Constitution in 1791.

Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ  Defining Punishment Corporal punishment of children is not the sort of punishment protected by the Eighth Amendment. It applies only to punishment for criminal behavior.  A crime is defined as a breach of a law made for the public good that is punishable by public law, or simply, an offense against society.  If the act or behavior being punished is not properly a crime, its criminalization is in and of itself cruel and unusual and therefore improper.  Cruel and Unusual Punishments The Supreme Court has held that the Eighth Amendment outlaws a punishment as cruel and unusual if the punishment itself involves unnecessary infliction of pain or if the punishment is grossly disproportionate to the nature of severity of the crime.

Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ  The Death Penalty Capital punishment is not per se cruel and unusual punishment. Thirty-eight states and the federal government currently authorize the death penalty. Generally the death penalty only applies to cases where the defendant deliberately killed another human being, or where the defendant was a major participant in a felony-murder. In addition, federal law authorized death for certain federal offenses such as espionage and treason.  Procedural Safeguards Required by the Eighth Amendment In 1976 the Supreme Court concluded in Gregg v. Georgia that execution remains a Constitutionally sanctioned punishment, given the existence of certain procedural safeguards.

Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ  Appropriate Methods of Death Generally, the sanction of death may be imposed in any way that is not unnecessarily cruel. The Supreme Court held in In re Kimmler that “[p]unishments are cruel when they involve torture or a lingering death.”  Persons Who Can Be Executed Mentally Ill and Mentally Retarded  The Supreme Court has ruled that a state may not execute a prisoner who is mentally incompetent at the time of execution.  However, prison officials can force an otherwise mentally incompetent individual to receive medication to restore his competence even if the prisoner objects.

Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ In a 6-3 decision, the Court ruled that the state cannot medicate a prisoner solely to stand trial, but can do so “if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the trial’s fairness, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.” In 2002, the Supreme Court ruled that executing the mentally retarded does violate the prohibition against cruel and unusual punishment.

Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ  Minors Of the 2,849 individuals on death row as of the end of 1996, there were 2.2 percent, or 64, who were age 17 or younger at the time of the commission of the offense. Two states set 14 as the statutory age limit. However, in light of the Supreme Court decision in Thompson, an age of 16 is the Constitutional limit.

Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ  Offenses Punishable by Death Generally most states reserve the death penalty for murder or felony murder, at least where the defendant was substantially involved in the victim’s death. A few states add treason as a capital offense. One state, Louisiana, specifies death for the aggravated rape of a victim under age 12. Under federal law, death is an allowable sanction for a number of offenses, including the taking of a human life, espionage, terrorist acts, and treason.  Life in Prison Many legislatures have passed laws requiring long sentences for recidivists. So-called “three strikes and you’re out” legislation has been popular with many state lawmakers.

Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ  Prison Conditions Generally, the punishments prohibited by the Eighth Amendment are those considered to be torture or otherwise barbarous. The Constitution prohibits the “wanton and unnecessary infliction of pain.” Imprisonment itself obviously carries with it some control over the day-to-day lives of the inmates, including confinement and physical coercion when necessary. However, conditions cannot be so poor that inmates are allowed to prey on each other and prisoners suffer malnutrition. In addition, adequate medical care must be provided for inmates.

Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ  Emerging Trends Predatory Sex Offender Registration  Forty-eight states currently have predatory sex offender registration laws mandating that prisoners who are released from prison after violent sexual offenses or those involving children must register their addresses and make public their presence in the community where they live after release.  These laws are generally referred to as “Megan’s Laws.” Florida has even set up a searchable site on the World Wide Web, complete with pictures, names, and address. The Supreme Court has concluded that the Kansas Sexually Violent Predator Act allowed involuntary confinement of persons with a mental abnormality or personality disorder who were found to be dangerous by a jury. The Court also ruled that confinement after serving a sentence for sex offenses wasn’t double jeopardy.

Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ  Chemical Castration Chemical castration of sex offenders is also gaining in popularity. Both surgical castration and chemical castration have been used in Norway, Sweden, Denmark, and Switzerland. Now several states have followed suit. Chemical castration is likely to be challenged on Eighth Amendment grounds as cruel and unusual punishment.