In recent years, society has become more fearful of crime and more concerned that the criminal justice system does not deter violent crime as it should. Fear of crime is a driving force in elections and political battles. The desire of the people for tougher sentences can run afoul of the Constitution and its prohibition against cruel and unusual punishment, among other provisions. The issue of cruel and unusual punishment is often argued with reference to the death penalty, but it has applications in other punitive situations. The concept of what does and does not constitute cruel and unusual punishment has evolved in decisions by the U.S. Supreme Court over the years, and the present state of the issue has developed from earlier views and cases. Yet, of equal importance is the issue of whether tougher punishment serves its intended purpose and contributes to a reduction in crime. It is assumed that it does, since this is the rationale for public cries to tougher sentencing, and an examination of the literature will illuminate whether there is support for this position or not.
The issue is not new, and Americans have answered the question of whether harsh punishments curtail crime differently at different times in American history. Kermit L. Hall notes that for the first century after the adoption of Article VIII, the question of cruel and unusual punishment was a completely dead issue. During that time, the Supreme Court conceded that torture and punitive "atrocities"--such as burning at the stake, crucifixion, or breaking on the wheel--would be defined as cruel and unusual, as in Wilkerson v. Utah in 1879. Other forms of punishment that were actually authorized by the state--such as hanging, shooting, and electrocution--were not, as seen in In re Kemmler in 1890. Hall writes,
The Court's criterion seems to have been whether a punishment would have been considered cruel and unusual in 1791, when the Bill of Rights...