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Earlier in July, a California judge struck the death penalty as unconstitutional because it is "cruel and unusual." However, if the death penalty actually was what's legally defined as a "cruel and unusual" punishment, it would not be legal in any state, as it would violate the Eighth Amendment. The Eighth Amendment prohibits "cruel and unusual" punishments, but it's a bit vague:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

It doesn't define a "cruel and unusual" punishment. What makes a punishment "cruel and unusual" (legally)?

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    Whatever a random political figure feels like, for most part. For a large segment of population, ANY punishment (including a talking-to that damages one's self esteem) is cruel and unusual, unless the target is an evil greedy capitalist theocrat conservative. – user4012 Aug 27 '14 at 2:13
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    The Constitution doesn't ban only cruel, or only unusual punishment. It only prohibits punishment that is both cruel and unusual. I suppose this means the USA could execute prisoners by octopus, or could have prisoners mauled by dogs (dog bites are common in the USA). – user1873 Aug 27 '14 at 4:12
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    @Avi, it was a bit of a joke, but technically in lawyer speak AND has a very specific meaning where both conditions must be true. For it to mean what you want it to mean, it would have to be written, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted, nor unusual punishments inflicted." – user1873 Aug 27 '14 at 5:47
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    @user45891 The oxford comma wouldn't apply here. There is only a list of two things. – Avi Aug 28 '14 at 5:01
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    Whatever a random political figure feels like, for most part. For a large segment of population, NO punishment is cruel and unusual, unless the target is an evil hippie socialist atheist liberal. – user1530 Aug 29 '14 at 4:39
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Standards for determining what constitutes "cruel and unusual punishment" were not defined explicitly in the Constitution, but set in the 1972 Supreme Court case, Furman v. Georgia. Wikipedia lists the criteria used to determine whether punishment is cruel and unusual, as specified in Furman v. Georgia:

  • The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," especially torture.

  • "A severe punishment that is obviously inflicted in wholly arbitrary fashion." (Furman v. Georgia temporarily suspended capital punishment for this reason.)

  • "A severe punishment that is clearly and totally rejected throughout society."

  • "A severe punishment that is patently unnecessary."

But, to clear up your confusion, the 9th Circuit Court did not find that the death penalty was inherently unconstitutional, but that capital punishment as currently implemented in California was unconstitutional. In California, the implementation of the death penalty is so plagued with delays and uncertainty, and takes so long that, if you are on death row in California, you are much less likely to die of execution than of other causes. Wikipedia lists the causes of death for California death row inmates since 1978, when capital punishment was reinstated in the state:

  • 57 inmates have died from natural causes
  • 6 inmates have died from other causes
  • 20 inmates have committed suicide
  • 13 have been executed in California
  • 1 inmate (Kelvin Shelby Malone) was executed in Missouri

Because of this, 9th District judge Cornac J. Carney ruled that the California death penalty was implemented arbitrarily, and therefore unconstitutional under the 8th Amendment's prohibition on cruel and unusual punishment. From his decision:

[California's system of capital punishment,] where so many are sentenced to death but only a random few are actually executed, would offend the most fundamental of constitutional protections — that the government shall not be permitted to arbitrarily inflict the ultimate punishment of death.

...

As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary

In other words, it is not that the cruel and unusual punishment is defined in such a way as to include the death penalty. (Many people and groups have tried to argue that it is, but those arguments have generally failed before the courts). Rather, it is that this judge ruled that cruel and unusual punishment is defined in such a way to include California's specific system of capital punishment.

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  • "A severe punishment that is clearly and totally rejected throughout society." Isn't executing someone rejected throughout society? What about locking someone up in a level 4 prison for life? In addition to being rejected by society, that's really "degrading to human dignity." Also, sorry about the mistake with the California judge. Bad interpretation ^_^. – Shahar Aug 27 '14 at 2:54
  • @shahar I agree that those terms are not well-defined, and I'd prefer a better and more specific standard (e.g. "not more severe than necessary to act as a deterrent"), but the majority of Americans (though an increasingly narrow majority) support execution as punishment, so it isn't "rejected throughout society." – Avi Aug 27 '14 at 4:57
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    Considering that 100% of the reason why so few are executed and why it takes so long is because of efforts of those opposing capital punishment, due to non-ending appeals and other delaying tactics and strategy; this only goes to show that a good lawyer can always prove that 2+2=5. – user4012 Aug 27 '14 at 11:05
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    @DVK I think it's kind of a "Let he who is without sin cast the first stone" thing that this lawyer is trying to do. The only humane way to execute people is to have all these appeals and stuff, but that takes so long it becomes inhumane, i.e. the argument is that the only conditions under which the death penalty is moral are conditions which it is impossible to meet. – Avi Aug 28 '14 at 5:00
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    I think its important to note(and Avi's answer basically says this) that the death penalty it self was not deemed C&U but the way that it was implemented in California was. – SoylentGray Aug 29 '14 at 1:42
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"Cruel and unusual punishment" is that which is defined for any given time. That is, it violates "contemporary" sensitivities.

Torture was considered "cruel and unusual punishment" at the time the Constitution was established. The death penalty was not (at the time).

But nowadays, the death penalty is considered "cruel and unusual punishment" in some states, and under some circumstances.

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