Miriam Berkman


The Eighth Amendment to the United States Constitution prohibits the infliction of "cruel and unusual punishments." This clause has been described as "constitutional boilerplate." Mr. Justice Story suggested that "the provision would seem to be wholly unnecessary in a free government, since it is scarcely possible, that any department of such a government should authorize, or justify such atrocious conduct."' Nevertheless, convicted persons repeatedly have invoked the protection of this express prohibition of cruel punishments in challenging the legitimacy of long prison terms for offenses perceived to be minor, innovative punishments, prison confinement under grossly debilitating conditions, and, perhaps most importantly, the death penalty. These challenges have forced judges to supply content to the words of the Eighth Amendment.

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