Cruel and unusual punishment

The statement that the government shall not inflict cruel and unusual punishment for crimes is found in the English Bill of Rights signed in 1689 by William of Orange and Queen Mary II who were then the joint rulers of England following the 'Glorious Revolution' of 1688. These exact words later appeared in the Eight Amendment to the United States Constitution (1787). Very similar words ('No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment') appear in Article Five of the Universal Declaration of Human Rights adopted by the United Nations General Assembly (A/RES/217, December 10, 1948). The right, under a different formulation ('No one shall be subjected to [...] inhuman or degrading treatment or punishment.') is found in Article Three of the European Convention on Human Rights (1950). The Canadian Charter of Rights and Freedoms (1982) also contains this fundamental right at Article Twelve and it is to be found again in Article Four (quoting the European Convention verbatim) of the Charter of Fundamental Rights of the European Union (2000).

What these words mean in practice is the subject of much legal argument. It is in keeping with the basic legal maxim that the "punishment should fit the crime". The "unusual" provision, at least, is clear: providing that persons will not be subjected to arbitrary, humiliating, or carpricious punishment outside the normal course of the law (for example, tarring and feathering). In the United States of America, for example, there has not, in all states, been the prohibition of the death penalty, or of execution by electrocution, which many people consider to a cruel and unusual punishment. However, there have been some cases which have resulted in the prohibition of the death penalty in certain circumstances, such as the execution of a minor under the age of 16, or of a mentally handicapped person. In the European Union, on the other hand, prohibition of the death penalty has been made a fundamental condition which must be passed into the law of states hoping to join.

Some people believe that mandatory minimum sentences may constitute cruel and unusual punishment in some cases. In the United States, arguments of this type have generally been rejected by the United States Supreme Court.