Thursday, September 2, 2010

Evaluating the Eighth Amendment's Ban on Only Cruel and Unusual Punishments

by Sherry F. Colb

September 1, 2010

A little over two weeks ago, a man and woman in Afghanistan were reportedly stoned to death for marrying each other without their parents' blessing. Stoning involves partly burying the condemned prisoner in the ground, and then having the community throw stones at her until she dies.

Coverage of the public execution in Afghanistan was, not surprisingly, very critical. Stoning as the penalty for any crime – let alone a "crime" that, in much of the world, is actually a fundamentally-protected right to choose a spouse without parental input – likely struck many as sadistic, monstrous, and depraved in its cruelty. As a matter of frequency, moreover, the penalty is quite unusual.

In this column, I will consider how and whether the fact that a punishment like stoning is "unusual" bears on its legitimacy. In other words, I will examine the wisdom of including the words "and unusual" in the Eighth Amendment prohibition against cruel and unusual punishments.