Judging Cruelty

69 Pages Posted: 24 Mar 2010 Last revised: 8 Feb 2011

See all articles by Meghan J. Ryan

Meghan J. Ryan

Southern Methodist University - Dedman School of Law

Date Written: March 1, 2010


The wisdom of the death penalty has recently come under attack in a number of states. This raises the question of whether states’ retreat from the death penalty, or other punishments, will pressure other states - either politically or constitutionally - to similarly abandon the punishment. Politically, states may succumb to the trend of discontinuing a punishment. Constitutionally, states may be forced to surrender the punishment if it is considered cruel, and, as a result of a large number of states renouncing it, the punishment also becomes unusual. If a punishment is thus found to be both cruel and unusual, it will be proscribed under the Eighth Amendment Punishments Clause of the U.S. Constitution.

Considering the disappearance of some punishments and the emergence of new ones, whether a punishment is cruel under the Punishments Clause is an important question. Curiously, there has been very little discussion of what constitutes a cruel punishment, as distinguished from whether a punishment is also unusual. This Article examines the concept of cruelty as enshrined in the Eighth Amendment Punishments Clause and suggests that the Supreme Court focus on this elusive concept through its independent judgment analysis. The Article emphasizes that such an independent judgment focus on cruelty should be constrained by specific, identified factors and that these factors should go beyond examining the penological purposes of punishment. The Article asserts that motive and the nature and quality of a punishment are central to the concept of cruelty and suggests that a more nuanced understanding of punishment rationales, supplemented by factors focused on elements such as the bloody or lingering nature of the punishment, is necessary in properly determining whether a punishment is cruel under the Punishments Clause.

Keywords: Eighth Amendment, Punishments Clause, Cruel and Unusual, Kennedy v. Louisiana, Retribution, Retributivism, Deterrence, Deterrent, Roper v. Simmons, Baze v. Rees, Ford v. Wainwright, Stanford v. Kentucky, Penry v. Lynaugh, Punishmemt, Sentencing

Suggested Citation

Ryan, Meghan J., Judging Cruelty (March 1, 2010). UC Davis Law Review, Vol. 44, No. 1, p. 81, 2010, SMU Dedman School of Law Legal Studies Research Paper No. 57, Available at SSRN: https://ssrn.com/abstract=1569103

Meghan J. Ryan (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

HOME PAGE: https://www.smu.edu/Law/Faculty/Profiles/Ryan-Meghan-J

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