Cruel and Unusual Punishments: A Comparison of Public and Judicial Opinion

38 Pages Posted: 3 Oct 2013

Date Written: October 2, 2013


The Eighth Amendment to the U.S. Constitution mandates that "cruel and unusual punishments" shall not be inflicted. Based on an "evolving standards of decency doctrine," the Supreme Court has held that forbidden punishments include the death penalty for non-homicidal crimes, the death penalty for the insane, and life imprisonment without the possibility of parole for juveniles. But how do lower court judges and ordinary citizens view these punishments and their relationship to justice? We surveyed 127 trial and appellate judges and 180 jury-eligible members of the general public about these matters. We found that the standards of decency for our surveyed groups have not evolved to the place reached by the Supreme Court. In three Eighth Amendment scenarios, a large majority of the public favored punishments that were expressly rejected as cruel and unusual by the Supreme Court. The attitudes of lower court judges were in between those of the general public and Supreme Court, but generally closer to those of the Supreme Court. We discuss some reasons why the public may be more punitive than the judges and Justices, and whether courts should attend to public opinion on this matter.

Keywords: cruel and unusual, Eighth Amendment, punishment

Suggested Citation

Cairns, Jason and Koehler, Jonathan J., Cruel and Unusual Punishments: A Comparison of Public and Judicial Opinion (October 2, 2013). Jurimetrics, Forthcoming, Available at SSRN:

Jason Cairns

Sidley Austin LLP ( email )

One First National Plaza
Chicago, IL 60603
United States

Jonathan J. Koehler (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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