Cruel and unusual punishment?

The VIIIth Amendment of the Constitution (1787) of the United States of America states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The first ten Amendments, the Bill of Rights, were approved by Congress in 1789 and ratified effective 15 December 1791.

Whatever punishments were deemed to be “cruel and unusual” in late 18th Century Europe, the old Continent has moved towards the abolition of the death penalty.

In 1983 the members of the Council of Europe agreed on Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty.

Article 1 – Abolition of the death penalty

The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.

But the prohibition was not total.

Article 2 – Death penalty in time of war

A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.

In 2002 the Council of Europe took the final step with Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances.

Article 1 – Abolition of the death penalty

The death penalty shall be abolished. No one shall be condemned to such penalty or executed.

Article 2 – Prohibition of derogations

No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention.

Article 3 – Prohibition of reservations

No reservation may be made under Article 57 of the Convention in respect of the provisions of this Protocol.

Today a Europe of 46 states with 800 million inhabitants has freed itself from the death penalty.

How should “cruel and unusual” be understood in the 21st Century?

Ralf Grahn