The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

8th Amendment

Cruel and Unusual Punishment

Changing Definitions

In all likelihood, when the English Bill of Rights banned “cruel and unusual punishments” in 1689, that prohibition was only meant to bind judges. In other words, Parliament did not have in mind a set list of punishments that could never be inflicted; rather, they wanted to ensure that punishments were established by law rather than invented, on the spur of the moment, by vindictive judges.

American colonists, however, generally took a broader view of that clause. The English, after all, had invented some rather nasty forms of punishment throughout the course of their history. Anyone who has seen the movie Braveheart will not soon forget the scene in which William Wallace (played by Mel Gibson) was disemboweled—slowly—in front of a jeering crowd.

Even as late as 1769, the legal commentator William Blackstone could still list a catalogue of horrors that remained in England’s penal code: “emboweling alive, beheading, and quartering” (that trio is one punishment) and public dissection or being burned alive. Blackstone nonetheless commends the English practice as being milder than its laws. It hardly ever happened that a person is “emboweled or burned, till previously deprived of sensation by strangling.” 

The Punishment of Titus Oates

In one famous British case in 1685, Titus Oates was convicted of perjury and sentenced to life in prison.  The Court also added that it had “taken special care of you for an annual punishment.”  Five times per year he was to be pilloried (tied to a device similar to the stocks that you might have seen at a historical site) and whipped.  The dissent in that case called the sentence “barbarous, inhuman, and unchristian,” but what is more striking is that the dissent also specified that “there is no precedent to warrant the punishments of whipping and committing to prison for life, for the crime of perjury.”  This censure suggests that the dissenting judges did not object to the annual whippings per se; rather they objected because such “judgments were contrary to law and ancient practice” for that particular crime.  Oates did not suffer his fate long before he was ordered released after the Succession of William and Mary, but his case remained notorious throughout England and America.