Freedom from Cruel or Unusual Punishment

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Background

In addition to international treaties which prohibit cruel or unusual punishment, many countries prohibit cruel and/or unusual punishment. Inextricably interwoven with the prohibition on cruel and unusual punishment is the idea that a sentence must be somehow proportionate to the crime committed.

Some jurisdictions may prohibit a punishment that is either cruel or unusual, while other jurisdictions may require the punishment to be both cruel and unusual before the right is triggered. At the very least most courts would agree that "inhuman and barbarous treatments such as torture, would violate the prohibition on cruel or unusual punishments.

However, other courts have determined that a prison sentence may be so disproportionate that it also violates the prohibition. A proper analysis of whether a punishment is cruel or unusual might include the following three factors, from the US Case Solem v. helm (1983)

  1. Nature of offenses
  2. Sentence imposed in other jurisdictions for similar crimes (interjurisdictional)
  3. Sentence imposed for other crimes in the same jurisdiction (intrajurisdicctional)

International Sources

  • International Covenant on Civil and Political Rights, Article 7 - No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 1 -
  1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
  2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.


Examples of the right to a sentence without cruel or unusual punishment

  • United States
    • 8th Amendment to the Constitution: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
    • Weems v. United States (1909) - A prisoner filed a writ of error following the affirmation of his conviction for falsifying a public document during his tenure as a disbursement officer in the Philippines and his resulting sentence of 15 years imprisonment, civil interdiction, surveillance during life, and perpetual absolute disqualification from activities including the deprivation of office and the loss of the right to vote, acquire honors, and retirement pay. The prisoner asserted that his sentence was cruel and unusual within the meaning of the Philippine Bill of Rights. Because the provision prohibiting cruel and unusual punishments contained in the Philippine Bill of Rights was taken from the U.S. Const. amend. VIII, the Court gave it the same interpretation. The Court agreed that the prisoner's punishment was improper because it was not proportionate to his offense, and thus the prisoner's sentence violated the prohibition against cruel and unusual punishments.
    • Trop v. Dulles (1958) -Petitioner, a native-born American, was declared to have lost his United States citizenship and become stateless because he was convicted by court-martial for wartime desertion. Petitioner commenced action in the district court, seeking a declaratory judgment that he was a citizen. The government's motion for summary judgment was granted, and the court of appeals affirmed. On review, the Supreme Court held that the forfeiture of petitioner's citizenship did not comport with U.S. Const. amend. VIII. The Court determined that citizenship was not subject to the general powers of the national government and therefore could not be divested in the exercise of those powers. Petitioner did not dilute his allegiance to the United States. The fact that the desertion occurred on foreign soil was of no consequence. The Court held that citizenship was not a license that expired upon misbehavior. Citizenship was not lost every time a duty of citizenship was shirked. The deprivation of citizenship was not a weapon that the government could use to express its displeasure at a citizen's conduct, however reprehensible that conduct may be.
    • Atkins v. Virginia (2002) - In both penalty phases, the defense relied on the conclusion of a forensic psychologist that the defendant was mildly mentally retarded. The Court noted that the practice of executing mentally retarded criminals had become truly unusual, and concluded that a national consensus had developed against it. Construing and applying the Eighth Amendment in the light of evolving standards of decency, the Court concluded that such punishment was excessive and that the U.S. Constitution places a substantive restriction on a state's power to take the life of a mentally retarded offender. The Court reasoned that the deficiencies of mentally retarded criminals do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability. Mentally retarded defendants in the aggregate face a special risk of wrongful execution. The Court noted that there was more disagreement about how to determine which offenders are in fact retarded than over whether or not the death penalty is appropriate for them. The Court stated that it would leave to the states the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.

Kenya

Constitution

  • 74(1) No person shall be subject to torture or to inhuman or degrading punishment or other treatment.

Tanzania

Criminal Procedure Act, 1984

  • 55(1) A person shall, while under restraint, be treated with humanity and with respect for human dignity.(2) No person shall, while under restraint be subjected to cruel, inhuman or degrading treatment.

Uganda

Constitution

  • 24. Respect for human dignity and protection from inhuman treatment.
    • No person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment.



See Rights of the Accused