The U.S. Constitution is supposed to protect people from egregious punishment—but that right is often violated.
At the start of the century, California prisons were packed to more than double their capacity—at its peak in 2006, the state incarcerated 175,000 people in a system designed for just 85,000. Incarcerated Californians were forced to sleep in gyms and other communal areas. Violence was common and suicide rates hovered around 80 percent above the national prison average. Inadequate medical and mental health care, an issue in prisons and jails nationwide, was especially egregious in the state’s prisons. When a person was deemed suicidal and mental health beds were full, officials locked them in a cage the size of a telephone booth.
These pervasive issues not only subjected incarcerated people to torturous conditions but also took lives. A “preventable or possibly preventable” death occurred more than once per week.
The extreme suffering and mounting death toll eventually prompted a lawsuit, Brown v. Plata, that made its way to the United States Supreme Court. In 2011, the Court found that the conditions inside California prisons violated the Eighth Amendment, which protects against cruel and unusual punishment. It ordered the state to immediately release between 38,000 and 46,000 people to partially relieve the overcrowding. The ruling prompted a wave of reforms meant to reduce the state’s prison population and mitigate the deadly conditions inside.
These conditions represent a textbook illustration of “cruel and unusual punishment,” and the long road in front of anyone seeking relief by invoking their Eighth Amendment protections. From overcrowded prisons to harsh sentences for minors to the enduring existence of the death penalty, the criminal legal system regularly employs extreme punishments. This type of cruelty often occurs nationwide, and a court challenge like Brown v. Plata is sometimes the only path toward relief for the people suffering.
What is “cruel and unusual?”
Every person accused or convicted of a crime deserves basic dignity. In the United States, the Eighth Amendment protects people from exceptional punishments that are either brutal or excessive. It also bans excessive fines and fees and high money bail. However, the Constitution does not provide a concrete definition of which punishments cross the threshold of “cruel and unusual.” That ambiguity leaves the definition to be debated by legal scholars and ultimately at the discretion of the courts.
How have courts determined what is “cruel and unusual?”
Because the Eight Amendment does not explain what qualifies as cruel and unusual, courts interpret its limits on a case-by-case basis. With such textual ambiguity, judges rely on precedent set by prior judicial decisions, even though rulings sometimes contradict each other. Judges have relied on two key criteria to inform their interpretations.
- Proportionality. The Supreme Court has, at times, ruled that sentences must be proportional to the alleged crime. It has also, at times, ruled the opposite to be true: in 2003, for instance, the Court said it was not “cruel and unusual” to sentence Gary Ewing to 25 years to life for stealing golf clubs as part of a “third strike” sentence. That decision strains credulity—disproportionate sentences are a common Eighth Amendment violation. Regardless, courts typically consider whether a punishment’s severity “fits” a crime.
- Evolving standards of decency. In a 1958 decision, then-Chief Justice of the United States Earl Warren wrote that, due to its vagueness, the precise meaning of the Eighth Amendment must reflect the “evolving standards of decency” of society at large. Warren’s test holds that if a punishment is popularly perceived to be brutal, that punishment violates the Eighth Amendment. Some advocates point to this test to argue that methods of punishment used today, such as forced labor, extended solitary confinement, and execution, are unconstitutional.
What happens if a punishment is deemed “cruel and unusual?”
Even if conditions in a jail or prison appear to be clear violations of the Eighth Amendment, remedying such circumstances may take years. While prison officials can implement changes unilaterally, it sometimes takes court action to compel them. In these instances, relief may only come after a cruel and unusual punishment is imposed. People must then wait years for their litigation to make its way through the courts (and, inevitably, the appeals process), while they often continue to suffer.
California’s overcrowded prisons offer a case study in the winding road to redress. Despite the egregious nature of the violations, it took 10 years after its initial filing for Brown v. Plata to wind its way to the Supreme Court. In that time, thousands of people died in California prisons—many of those deaths likely being preventable—and tens of thousands more were subject to horrific conditions. Although the Supreme Court ultimately found that punishments facing imprisoned Californians were unconstitutional, people continued to suffer in the interim as the case lurched forward.
How can states end cruel and unusual punishment?
Legislators can, and should, work to explicitly outlaw specific forms of punishment that are cruel and unusual. Twenty-three states and the District of Columbia have banned the death penalty; other states should abolish the practice within their borders, too. Congress could also choose to ban the death penalty for federal offenses.
Similarly, states can restrict solitary confinement. Forty-two states have passed some sort of restrictions on the practice since 2009. New York passed the HALT Solitary Act in 2021, limiting solitary confinement to a maximum of 15 days. However, states could enact total bans on the practice, as could the federal government.
Other common Eighth Amendment violations, like severe sentences for minors, criminalizing poverty, unpaid prison labor, and healthcare-related neglect behind bars, can be addressed with targeted legislation and by reducing the jail and prison population. Indeed, Vera’s Restoring Promise initiative is working to change the culture in prisons across the country, demonstrating that there are concrete steps states can take to guarantee the dignity of the nearly 1.3 million people held in prisons.
Sam McCann Senior Writer with Vera Institute of Justice – originally published by Vera Institute of Justice
