Cruel and Unusual Punishment

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

Eighth Amendment, U.S. Constitution.

Basics

Gregg v. Georgia (1976), 428 U.S. 153, 171 -- The prohibition embodied in the Eighth Amendment is not limited to the barbarous methods in use at the time the amendment was adopted.
 
Weems v. United States (1910), 217 U.S. 349 -- (1) Punishment for crime should be graduated and proportionate to the offense. (2) The Eighth Amendment is progressive, acquiring wider meaning as public opinion becomes enlightened by humane justice. (3) In considering whether a particular practice constitutes cruel and unusual punishment the court may look at the penalty for comparable crimes in other jurisdictions. (4) Fifteen years in confinement, in chains and at hard labor, lifetime surveillance and loss of civil, family and property rights is a bit much for making false bookkeeping entries.
 
Solem v. Helm (1983), 463 U.S. 277 -- (1) A court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." (2) Life without possibility of parole for a $100 bad check written by a repeat offender was disproportionate to the offense and thus cruel and unusual punishment.

Specific Circumstances - U.S. Supreme Court

Wilkins v. Gaddy (2010), 130 S.Ct. 1175 – District court sua sponte dismissed 1983 action for failure to state a cause of action because inmate-petitioner failed to allege that use of excessive force by a guard resulted in significant injury. This reflects a misinterpretation of Hudson v. McMillian (1992), 503 U.S. 1. While a push or shove causing no discernable injury might not be actionable, ultimately it is the use of force that is actionable, not the degree of the injury.
 
Kennedy v. Louisiana (2008), 128 S.Ct. 2641 – The Eighth Amendment does not permit the death penalty for rape of a child when death was neither the result nor the intended result.
 
Baze v. Rees (2008), 128 S.Ct. 1520 – Use of a three drug cocktail in executions does not amount to cruel and unusual punishment. At 1529: "… (T)he United States Constitution does not demand the avoidance of all risk of pain in carrying out executions."
 
Ewing v. California (2003), 123 S. Ct. 1179 -- California's three strikes law does not violate the Eighth Amendment ban on cruel and unusual punishment.
 
Lockyer v. Andrade (2003), 123 S.Ct. 1166 -- In a habeas action, application of the Antiterrorism and Effective Death Penalty Act of 1996 leads to the conclusion California's three strikes law is not in violation of the Eighth Amendment. The Court concludes that its prior decisions do not provide a clear and consistent path for courts to follow in determining what constitutes cruel and unusual punishment. Thus, under AEDPA, the determination by California courts that there was no violation cannot be concluded to be contrary to or inconsistent with clearly established law as determined by the Supreme Court.
 
Roper v. Simmons (2005), 125 S.Ct. 1183 -- The execution of those who committed a homicide while under the age of eighteen violates the Eighth Amendment. Decision is based on indicia of a national consensus that such individuals are categorically less culpable that the average criminal.
 
Atkins v. Virginia (2002), 122 S.Ct. 2242 -- The execution of the mentally retarded violates the Eighth Amendment's ban on cruel and unusual punishments. The Eighth Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. The increasing national consensus is that execution of the mentally retarded is wrongful and an excessive punishment.
 
Panetti v. Quarterman (2007), 127 S.Ct. 2842 -- To be competent for execution an inmate must have a rational understanding of the state's rationale for execution. Inmate understood he was to be executed but believed it was to stop him from preaching.
 
State v. Bays, 159 Ohio App. 3d 469, 2005-Ohio-47 -- There is a significant difference between expert testimony offered for mitigation purposes and expert testimony offered for Atkins purposes. Although evidence adduced for mitigation purposes may be relevant, it was an abuse of discretion not to allocate funds for further evaluation. Also see State v. Hughbanks, 159 Ohio App. 3d 257, 2004-Ohio-6429.
 
Hope v. Pelzer (2002), 122 S.Ct. 2508 -- Alabama prison's use of a hitching post to discipline inmates found to violate the Eighth Amendment. Nonetheless, guards would be entitled to immunity unless on notice their conduct violated established law. Here, a reasonable officer should have known the practice was wrong, in part because the Justice Department has so advised prison officials.
 
Furman v. Georgia (1972), 408 U.S. 238 -- The death penalty administered in an unguided manner is cruel and unusual punishment.
 
Proffitt v. Florida (1976), 428 U.S. 242 -- The death penalty is not per se cruel and unusual punishment.
 
Coker v. Georgia (1977), 433 U.S. 584 -- The death penalty is cruel and unusual punishment for rape, because it is disproportionate to the offense.
 
Thompson v. Oklahoma (1988), 487 U.S. 815 -- The death penalty is cruel and unusual punishment for a defendant less than sixteen years of age.
 
Payne v. Tennessee (1991), 501 U.S. 808 -- Under the Eighth Amendment there is no per se bar during the sentencing phase of a death penalty trial to the jury hearing victim impact testimony and related argument by the prosecutor. Unduly prejudicial victim impact testimony may violate the Due Process Clause of the Fourteenth Amendment. But such matters are not a part of the Ohio scheme for sentencing in capital cases. See State v. Reynolds (1998), 80 Ohio St. 3d 670, 679 and State v. Goodwin (1999), 84 Ohio St. 3d 331, 342-343.
 
Ford v. Wainwright (1986), 477 U.S. 399 -- The Eighth Amendment prohibits execution of an insane prisoner. At page 406: "...this Court takes into account objective evidence of contemporary values before determining whether a particular punishment comports with the fundamental human dignity that the Amendment protects."
 
Rummel v. Estelle (1980), 445 U.S. 262 -- Life imprisonment for three time loser, with possibility of parole after twelve years, is not cruel and unusual punishment. Also see Hayes v. Bordenkircher (6th Cir. 1980), 621 F. 2d 846.
 
Ingraham v. Wright (1977), 430 U.S. 651 -- The Cruel and Unusual Punishments Clause of the Eighth Amendment applies to criminal prosecutions but not school disciplinary practices.
 
Whitley v. Albers (1986), 475 U.S. 312 -- While inmate shot in leg during prison disturbance here loses claim for damages under 42 U.S.C. Sec. 1983, court appears to accept that such a cause of action lies based on claims of cruel and unusual punishment.

Specific Circumstances - Ohio Cases

Last updated 7/12/2016
 
State v. Broom, 2016-Ohio-1028. Second attempt to execute defendant by lethal injection did not violate constitutional provisions prohibiting cruel and unusual punishment.
 
In re C.P., No. 2012-Ohio-1446, syllabus -- "To the extent that it imposes automatic, lifelong registration and notification requirements on juvenile sex offenders tried within the juvenile system, R.C. 2152.86 violates the constitutional prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 9, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 16."
 
State v. Hairston, 118 Ohio St. 3d 289, 2008-Ohio-2338 – Syllabus: "Where none of the individual sentences imposed on an offender are grossly disproportionate to their respective sentences, an aggregate prison term resulting from consecutive imposition of those sentences does not constitute cruel and unusual punishment." Defendant got 134 years on guilty pleas. Victims were not seriously harmed. See concurring opinion.
 
State v. Lott, 97 Ohio St. 3d 303, 2002-Ohio-6625 -- In order to implement Atkins v. Virginia (2002), 122 S.Ct. 2242, the trial court is to conduct a hearing to determine whether the defendant is mentally retarded. Since Atkins recognizes a new federal or state right that applies retroactively, a new postconviction petition is the avenue to relief. A three-part test is to be applied, looking to: (1) significantly subaverage intellectual functioning, (2) significant limitations in two or more adaptive skills, and (3) onset before age 18. The defendant must establish he is mentally retarded by a preponderance of the evidence. There is a rebuttable presumption that a defendant is not retarded is his IQ is above 70. Also see State v. Thomas, 97 Ohio St. 3d 309, 2002-Ohio-6624, ¶87-121. For a case on implementation and the need to conduct a hearing see State v. Carter, 157 Ohio App. 3d 689, 2004-Ohio-3372.
 
Baker v. Ohio Department of Rehabilitation and Correction (2001), 144 Ohio App. 3d 740 -- (1) Inmate's 1983 action survives Civ.R. 12(B)(6) motion on claim denial of proper medical care by prison affiliated physician amounted to cruel and unusual punishment. (2) Bias claim against trial judge is not a matter that can be raised on appeal. Remedy is disqualification by the Chief Justice.
 
State v. Barnes (2000), 136 Ohio App. 3d 430 -- A one-year sentence for escape premised on the failure to report to a parole officer during a two-week period does not constitute cruel and unusual punishment because such a sentence for a crime of this gravity does not shock the conscience of the community. Failing this first stage of Eighth Amendment analysis, the court need not further determine proportionality within the same jurisdiction or the sentences imposed for similar offenses in other jurisdictions.
 
State v. Warren, 168 Ohio App. 3d 288, 2006-Ohio-4104 -- No Eighth Amendment violation found in an adult receiving a life sentence for criminal acts committed when he was fifteen.
 
State v. Weitbrecht (1999), 86 Ohio St. 3d 368 -- Syllabus: "R.C. 2903.04(B) [involuntary manslaughter], as applied to a minor misdemeanor traffic offense which results in a vehicular homicide, does not violate the Eighth Amendment to the United States Constitution or Section 9, Article I of the Ohio Constitution." Also see State v. Manhart (1999), 135 Ohio App. 3d 499. Compare State v. Campbell (1997), 117 Ohio App. 3d 762.
 
State v. Zucal (1998), 82 Ohio St. 3d 215 -- Syllabus: "(1) In convictions involving misdemeanor offenses, a delay in execution of sentence resulting from jail overcrowding that exceeds five years from the date that sentence is imposed is unlawful. (2) Any sentence resulting from a conviction of a misdemeanor offense that is not completed within five years from the date of sentencing must be vacated. (3) Sentences may continue to be modified, in accordance with applicable law, within the five year period after imposition of sentence. (4) No modification of sentence may occur after five years from the date of sentencing."
 
North Canton v. Hutchinson (1996), 75 Ohio St. 3d 112 -- Defendant was told to come back in five years to serve her twelve day sentence. Court of Appeals found this to be cruel and unusual punishment. Supreme Court was somewhat sympathetic, but found there was no final appealable order. Syllabus: "Absent explicit review and judgment by a trial court, a directive issued by a jail authority releasing a defendant and suspending the commencement of his or her sentence because the jail is at maximum capacity and cannot accommodate the defendant is not an 'order' that may be appealed. (R.C. 2505.03[A] and 2505.02, construed and applied.)" Opinion suggests alternate methods for raising the same claim.
 
State v. O'Shannon (1988), 44 Ohio App. 3d 197 -- Incarceration of amputee taking various medications did not constitute cruel and unusual punishment.
 
State v. Jones (1983), 13 Ohio App. 3d 65 -- Three years actual incarceration for gun specification not cruel and unusual punishment. Also see State v. Mullins (1988), 34 Ohio App. 3d 192.
 
State v. Bonello (1981), 3 Ohio App. 3d 365 -- Sentence of actual incarceration for felony drug offense not cruel and unusual punishment. Also see State v. Babcock (1982), 7 Ohio App. 3d 104.
 
State v. Harlan (1995), 105 Ohio App. 3d 756 -- During a shampoo and rinse, defendant handcuffed hairdresser to sink, leading to M-3 charge of unlawful restraint. Under these circumstances, adding a felony charge of possession of criminal tools (handcuffs) amounted to the creation of a constitutionally disproportionate charge. See Solem v. Helm (1983), 463 U.S. 277.
 
State v. York (1997), Ohio App. 3d 226 -- Pregnant woman shot one of her horses in the head. Humane society officer came to investigate and spotted malnourished Shetland Pony in the barn. It was not cruel and unusual punishment to tell the defendant in court: "You are not going to have the daily jail menu. I want you to feel the hunger pains while you are in jail that you've let the animal feel," or to state in the entry: "A nutritional plan shall be approved by a licensed physician specializing in the practice of obstetrics. The Defendant shall not be permitted to eat or drink any food or beverage not necessary for her health or the health of her fetus."
 
State v. Lazada (1995), 107 Ohio App. 3d 189 -- After a reasonably detailed exposition of the applicable standards for review, court nonetheless concludes that maximum consecutive sentences for auto theft and possession of criminal tools was neither cruel and unusual punishment, nor in reprisal for acquittal on related charge of felonious assault upon a police officer. Consider case as a point of departure for sentencing appeals under the 1996 sentencing laws.
 
State v. Williams (1993), 89 Ohio App. 3d 288 -- Burglar had a flashlight. It was not cruel and unusual punishment to impose a consecutive term for PCT. Compare State v. Gilham (1988), 48 Ohio App. 3d 293; State v. Parson (1990), 67 Ohio App. 3d 201.

Excessive Fines

State v. Bybee (1999), 134 Ohio App. 3d 393 -- 188 dogs were found in deplorable condition in defendant's care. The $117,625 she was ordered to pay in restitution was an in personam criminal forfeiture amounting to an excessive fine under the Eighth Amendment.
 
State v. Keylor, Monroe App. No. 02 MO 12, 2003-Ohio-3491 -- Judgment entry pertaining to county court clerk who embezzled $105,000 stated judicial release would not be considered until monetary sanctions were paid. These included restitution and $19,000 in fines. Statement was gratuitous but did not arise to error. Determination of ability to pay sanctions would have been premature. Failure to object to the amount of the fine at the sentencing hearing said to waive cruel and unusual punishment claim.
 
Austin v. United States (1993), 509 U.S. 602 -- In rem civil forfeitures are punishment within the meaning of the Eighth Amendment and are subject to the Excessive Fines Clause. Sale of two ounces of cocaine had led to forfeiture proceedings against defendant's place of business and mobile home. Also see Akron v. Turner (1993), 91 Ohio App. 3d 595, where on remand the trial court was directed to consider the appropriateness of the possible forfeiture of a auto and its stereo under an Akron loud music ordinance.
 
U.S. v Bajakajian (1998), 524 U.S. 321 -- A non-in rem forfeiture is a fine within the reach of the Excessive Fines Clause. The touchstone of constitutional inquiry under the clause is the principle of proportionality. The amount of the forfeiture must bear some relationship to the gravity of the offense. Review is by application of the gross disproportionality standard articulated in cruel and unusual punishment cases. Forfeiture of the entire $357,000 in cash defendant failed to report upon leaving the country was grossly disproportionate to the relatively minor violation he was convicted of.
 
State v. Hill (1994), 70 Ohio St. 3d 25,29 -- Syllabus: "Forfeiture of property, pursuant to R.C. 2925.42, is a form of punishment for a specified offense and, therefore, is a 'fine' for purposes of Section 9, Article I of the Ohio Constitution and the Eighth Amendment to the United States Constitution. Accordingly, prior to entering an order of forfeiture, the trial court must make an independent determination whether forfeiture of that property is an 'excessive fine' prohibited by the Excessive Fine Clauses of the Ohio and United States Constitutions."
 
State v. Ziepfel (1995), 107 Ohio App. 3d 646 -- Court upholds forfeiture of an expensive motorcycle in a fourth offense OMVI. Opinion discusses excessive fines cases, in personam and in rem forfeitures, and instrumentality and proportionality standards.
 
State v. Harold (1996), 109 Ohio App. 3d 87 -- Forfeiture of half interest in a $15,000 house upon conviction of two counts of trafficking, involving $60 worth of crack, did not violate the Excessive Fines Clause. Court declined to follow instrumentality test, choosing proportionality standards adopted in United States v. Millbrand (2nd Cir 1995), 58 F. 3d 841 and United States v. ...6380 Little Canyon Rd... (9th Cir. 1995), 59 F. 3d 974. For a Sixth Circuit case see United States v. ...11869 Westshore Drive... (6th Cir. 1995), 70 F. 3d 923.
 

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Published by David L. Strait
 
Copyright © Franklin County Public Defender and David L. Strait, 2015
 
Contents may not be duplicated without express permission.

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