Background
The Eighth Amendment of the United States Constitution prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual Punishment clause applies to states. The phrases employed originated in the English Bill of Rights of 1689.
The Eighth Amendment was adopted as part of the Bill of Rights in 1791. The provision was largely inspired by the case of Titus Oates. The Englishman was tried in 1685 for multiple acts of perjury during the ascension of King James II after a number of people whom Oates had wrongly accused of treason were executed. Oates was sentenced to imprisonment, along with an annual ordeal of whipping and time in the pillory. The Oates case became a topic of the U.S. Supreme Court's Eighth Amendment jurisprudence. Oates's punishment involved ordinary penalties collectively imposed in an excessive and unprecedented manner. The reason Oates did not receive the death penalty may be because the punishment would have deterred even honest witnesses from testifying in later cases.
The Virginia Declaration of Rights of 1776 had already adopted the English Bill of Rights' stance on cruel and unusual punishment The state later recommended that this language also be included in the Constitution.
According to the Supreme Court, the Eighth Amendment forbids some punishments entirely, prohibiting other punishments that are deemed excessive when compared to the crime or the competence of the perpetrator.
Punishments Forbidden for Certain Crimes
The case of Weems v. United States, (1910) marked the first time that the Supreme Court exercised judicial review to overturn a criminal sentence as cruel and unusual. The Court overturned a punishment called cadena temporal, which mandated "hard and painful labor," shackling for the duration of incarceration and permanent civil disabilities. This case is often viewed as establishing a principle of proportionality under the Eighth Amendment. However, others have written "it is hard to view Weems as announcing a constitutional requirement of proportionality. "
In Trop v. Dulles, (1958), the Supreme Court held that taking away citizenship from a natural-born citizen for a crime was unconstitutional. The punishment was considered "more primitive than torture" because it involved the "total destruction of the individual's status in organized society. "
In Furman v. Georgia (1972), Justice Brennan wrote that there are four principles by which particular punishment is deemed cruel and unusual : Punishment should not be patently unnecessary, degrading to human dignity, inflicted in a wholly arbitrary fashion, or severe enough to be clearly rejected throughout society.
Punishment of the Paddle
This is an old form of punishment.
Justice Brennan also wrote that no state would pass a law violating any one of these principles. Court decisions regarding the Eighth Amendment would hence involve a "cumulative" analysis of the implication of each of the four principles, setting a standard in the way punishments were considered cruel and unusual.
It is up to individual states to decide if death can be considered "cruel and unusual" punishment. As of 2016, 31 states (and the federal government) had death as an acceptable form of punishment.
In California, more than 700 inmates await execution, with the last execution occurring in 2006. Because California's death penalty was approved by voter initiative, it can only be repealed by voters and not the legislature. Prop. 62 on the Nov. 8, 2016 ballot will ask voters to do repeal its death penalty.