Punitive Pain and Humiliation

The Bill of Rights, in 1689, contained a clause prohibiting the infliction of cruel and unusual punishments. A provision in identical terms appears in the Eighth Amendment to the Federal Constitution. It has been adopted in the Constitutions of most of the States. It is not my purpose to review the cases in which the phrase has been construed. The Weems3 case (217 U. S. 349) decided in 1910 is discussed by Professor Schofield in an interesting article appearing in the fifth volume of the Illinois Law Review under the title "Cruel and Unusual Punishment." A note, 4 with the same caption, in the 35th volume of Lawyer's Reports Annotated satisfactorily collects the cases in the State Courts. With these two citations I shall dismiss the law-brief aspect of this paper. Justice White in his dissenting opinion (concurred in by Justice Holmes) in the Weems case criticises for its "emotional tendency" the following language in the majority opinion: "The prohibition against cruel and unusual punishments is not fastened to the obsolete but may acquire a meaning as public opinion becomes enlightened by human justice." The Harvard Law Review,5 commending this interpretation and thereby disagreeing with the dissenting Justices and with Professor Schofield, thinks there is no danger of Judicial intermeddling in view of the fact that the'power is to be exercised only when the punishment "shocks public feeling." The allusion is to decisions to the effect that cruel and unusual punishments are "such as make one shudder with horror to read of them;"6 and again "such as would shock the mind of every man possessed of common feeling."7 I submit that neither the objective test of the Judicial shudder nor the subjective test of the Judicial shock sufficiently proscribes the