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. Crime costs the taxpayer, the consumer, and business vast sums of money each year, and the public responds by calling for more police, increased legislation, and stiffer penalties. 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.
Once the essential language of the U.S. Constitution was written and adopted, many of the concerns of the individual states were addressed in the first ten articles of Amendments, also known as the Bill of Rights. These ten articles were influenced largely by George Mason, Thomas Jefferson, and James Madison, with much of the final language based on Mason's "Declaration of Rights" for Virginia's Constitution of 1776. There were originally twelve, but two were eliminated as the final ten were adopted in 1791. Article VIII states: "Excessive bail shall not lie required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." These simple words have engendered reams of interpretation, for the Constitution does not say what constitutes either cruel or unusual punishment or how to make such a determination.
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, th...