8th Amendment

What is cruel and unusual punishment? This question has been asked since the beginning of mankind. When Cain killed Abel, Cain was exiled from the land, was that cruel and unusual? In the original castle doctrine, Exodus 22:2 “if a thief is breaking into your house at night you are not guilty of bloodshed”, is this cruel and unusual? How about an eye for an eye and a tooth for a tooth, Exodus 21:23 “But if there is serious injury, you are to take life for life” is this cruel and unusual?

Look at Coker v. Georgia “In Coker v. Georgia, the Supreme Court ruled that death for rape is unconstitutional.” Coker escaped and went on to rape some more. The Court wrote:

[a] punishment is “excessive” and unconstitutional if it makes no measurable contribution to acceptable goals of punishment and hence is nothing more than purposeless and needless imposition of pain and suffering or is grossly out of proportion to the severity of the crime.

Ethics and morality is very much involved in punishment of a crime. Is it ethical to kill someone for killing someone else? What about a killer that escapes to kill again, or rape again? What about the cruel and unusual punishment of the victim such as in Coker’s case. What about the woman he raped? What did she do to deserve her punishment of rape, was her fate cruel and unusual?

Criminal law is so strong on the rights of the perpetrator. What about the victim? And what about future victims of known killers, do they not have the right to protection of the 8th amendment from cruel and unusual punishment, for a crime no greater than being in the wrong place at the wrong time? Then Mathew 5:23 says “but I say unto you, resist not him that is evil: but whosoever smiteth thee on thy right cheek, turn to him the other also.” The definition of cruel and unusual has changed over the years. It also changes with the relationship to the victim. Therefore each case must be judged ethically, with the rights of the victim and future victims, then the rights of the criminal in that order.

(Davenport. Basic Criminal Law: The Constitution, Procedure, and Crimes, 2nd Edition. Pearson Learning Solutions 16.10).