NCJ Number
5154
Journal
Minnesota Law Review Volume: 56 Issue: 4 Dated: (NOVEMBER 1971) Pages: 96-110
Date Published
1971
Length
15 pages
Annotation
EXAMINATION OF A CASE INVOLVING CRUEL AND UNUSUAL PUNISHMENT WITHIN THE CONTEXT OF THE HISTORY OF APPLICATION OF THE EIGHTH AMENDMENT.
Abstract
EARLY CASES CONSIDERED THE PUNISHMENT ITSELF, NOT THE CRIME. IN 1962, THE SUPREME COURT SPECIFICALLY EXAMINED PUNISHMENT IN PROPORTION TO THE CRIME FOR THE FIRST TIME IN 50 YEARS. THE PROPORTIONALITY STANDARD, WHILE MORE RATIONAL, IS MORE DIFFICULT TO APPLY, AND IS USUALLY EXPRESSED IN TERMS OF SHOCK TO THE CONSCIENCE OF MORAL MEN. THE CIRCUIT COURT IN THIS CASE LOOKED TO OTHER JURISDICTIONS, AND FOUND A POPULAR REJECTION OF THE DEATH PENALTY FOR RAPE CASES. ONE MAJOR RESULTANT PROBLEM IS THE DIFFICULTY AND UNDESIRABILITY OF MAKING CONSTITUTIONALITY OF PUNISHMENT TURN ON A FINDING THAT LIFE WAS ENDANGERED. THE AUTHOR BELIEVES THAT THE DEATH PENALTY SHOULD NOT BE GIVEN IF THE VICTIM IS NOT KILLED. THE SECOND MAJOR PROBLEM IS THE DANGER IN LETTING THE POPULACE DECIDE WHICH ARE CRUEL AND UNUSUAL PUNISHMENTS. HERE, THE AUTHOR FEELS JUDGES SHOULD EXAMINE THEIR OWN CONSCIENCES FOR THIS DECISION.