Cruel and Unusual Punishment

watergate hearing

The Eighth Amendment protects people from "excessive fines" and "cruel and unusual punishment." This provision has been narrowly interpreted, and it has not been used successfully to challenge capital punishment.


The Eighth Amendment states that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Supreme Court has dealt with this amendment most frequently with regards to the death penalty . In 1972, in the cases of Furman v. Georgia, Branch v. Texas and Jackson v. Georgia; the Court struck down the nation's laws on capital punishment. The vote on all of the cases was 5-4. Two of the justices, William Brennan, Jr and Thurgood Marshall, opposed the death penalty in all circumstances, while the others opposed the arbitrary manner in which it had been imposed. The Court thus allowed states to rewrite their criminal codes to conform to the standards that the Supreme Court has set. The states did and, in each case approved by the Court, starting with Gregg v. Georgia in 1976, instituted a two-phase trial in death penalty cases. The first phase of the trial determined the defendant's guilt or innocence, and the second determined the penalty, if the accused was found guilty. In 1987, the Court extended the death penalty to criminal accomplices, even if they did not themselves commit the capital crime. In 1988, the Court refused to overturn the conviction of an African-American man convicted of killing a white policeman. The appeal was based on a study that showed that African-American men were ten times more likely to receive the death penalty if charged with killing a white person than if they were charged with killing an African-American person. Justice Lewis Powell Jr, writing for the majority of 5-4, stated that, while Georgia’s justice system might in fact be unfair to African-Americans, a statistical study could not prove purposeful racism. Since there was no evidence that racism was involved in this particular case, the Court upheld the sentence. In 1988, a majority of 5-3 overturned the death sentence handed down to William Wayne Thompson, since he had been only 15 years old when he committed the crime for which he was being punished.