What Constitutes Cruel and Unusual Punishment?

The Eighth Amendment of the Federal Constitution prohibits cruel and unusual punishment; Article 1, Section 13 of the Pennsylvania Constitution reiterates this prohibition. In order to make a claim of cruel and unusual punishment, a person has to look to see if the scope of the crime matches the penalty of the punishment. An obvious example could be: the punishment for stealing a shirt from a department store is getting your hand chopped off. What is cruel and unusual is judged by the standards that ordinary people hold today, in the modern world. Therefore, what is cruel and unusual could change as standards and morals change.

Currently in Pennsylvania, cruel and unusual punishment consists of:

  • Executing a mentally retarded person or a person adjudicated legally insane (a mere mental disability is not always going to be sufficient). Atkins v. Virginia (U.S. Supreme Court); Commonwealth v. Banks.
  • Housing persons in a prison which, from both an objective and subjective point of view, denies the prisoner the “minimum of life’s civilized necessities” and where the prison officials act with deliberate indifference to the health and safety of prisoners. Neely v. Department of Corrections.
  • Punishments which are wholly and irrationally disproportionate to the crime; the prohibition is against extreme sentences which are grossly disproportionate to the crime. Commonwealth v. Yasipour.
  • Excessive fines (although what constitutes “excessive is difficult to establish and largely relies on what the statutory maximum for the crime is, and whether the amount of money sought in some way recompenses for the illegal activity). Commonwealth v. Schill.
  • Life in jail without possibility of parole or the death penalty for persons under the age of 18 at the time the crime was committed. Commonwealth v. Chambers.

In Wyoming, the prohibition of cruel and unusual punishment, Art 1, s. 14, is phrased differently but has been held to have the same meaning as the Eighth Amendment of the Federal Constitution.

  • Treating a prisoner in a way which creates the unnecessary and wanton infliction of pain contrary to contemporary standards of decency (this includes denying necessary medical and/or psychiatric help). Garnett v. Coyle.
  • Punishments which do not uphold the mandate that the penal code only mete sentences which are humane and are based on reformation and prevention of future criminal actions; the prohibition is against extreme sentences which are grossly disproportionate to the crime under the Eight Amendment as well. Oakley v. State; Dodge v. State.
  • Proportionality requires looking at 3 things: the gravity of the crime vs. the punishment, the sentences of others with similar crimes in this jurisdiction, the sentences of others with similar crimes in other jurisdictions. Smith v. State
  • Wyoming does not have a case specifically regarding execution of mentally retarded or insane persons, but has stated in dicta that it follows the prohibition against executing persons who are incapable of knowing what they did was wrong/ incapable of preventing the wrong. Swazo v. State.
  • Requiring civil forfeiture may be a violation of the Eight Amendment and Wyoming Constitution under the excessive fines clause. Doles v. State.
  • Wyoming has a more stringent requirement regarding bail than the United States Constitution and requires that if possible all persons not guilty of first degree murder be given a chance to be released on bail. Simms v. Oedekoven.

What is a Preliminary Hearing?

If you or someone you know has recently been charged with a crime, they will be scheduled for a “preliminary hearing.” The words sound just like what they mean; a meeting with the judge, your attorney, and the prosecutor to determine if, before anything else, there is enough evidence to even cast reasonable suspicion on the accused. This hearing a crucial first step in criminal procedure, and takes place even before the first motion is filed.

A preliminary hearing is an evidentiary hearing, at which the prosecutor shows the judge or magistrate all of the evidence he or she has against the accused. The preliminary hearing does not involve a jury, and evidence that is admitted in the preliminary hearing may be objectionable and excluded at trial itself.

The purpose of a preliminary hearing is to determine whether there is any reason to believe that a crime was committed, and that the accused may have been the one who committed that crime. This is the time when a good attorney may be able to help the accused. A good attorney should look for flaws in the prosecutor’s progression of the crime, the evidence the prosecutor has of the commission of a crime, and the manner in which the prosecutor acts so that the attorney can determine if a plea bargain may be the best option for the accused.

A preliminary hearing is also a good testing ground for you to see how the attorney you have hired works. If the attorney takes the hearing seriously, and is diligent in his defense even at the preliminary hearing, then you have an attorney who, at the very least, is going to try hard to help you. If your attorney does not seem to be taking the hearing seriously or is unprepared, you may wish to consider another attorney before you get too far into the case. Some attorneys do not utilize opportunities to attack the case at the preliminary hearing, and you need to keep an eye out for this lazy kind of lawyering.

If you have an impending preliminary hearing, don’t wait until you get to court and hear from the judge that you’re headed to trial before hiring an attorney. Preliminary hearings are important, and are stressful for an accused person. Do not try to handle it alone: you deserve every opportunity for a great defense.

Explanation of Common Attorney Billing Practices

When you first meet with an attorney a lot of words may be thrown around, and it can sometimes get confusing. The attorney will send you a written agreement with the duties he or she has taken on, your rights and responsibilities as a client, and the agreement for payment. Sometimes the terms of payment can be confusing, so this is a brief explanation of the most common billing practices.

Fixed fees:

A fixed attorney fee means that for a certain service you will pay a definite amount. For example, an attorney may charge you $1,000.00 to represent you at your preliminary hearing. Or, an attorney may charge you $2,000.00 to help you through the ARD process.  Most often, fixed fees are due prior to the attorney beginning work.

Fixed fees are gaining favor among attorneys and clients alike. The method is straightforward, and the client always knows what his or her total charges are going to be. It’s a good method to use when the legal process is finite. That is, when the steps that need to be taken are well known by the attorney and when the client has a set goal in mind.

Some common times when fixed fees are used: ARD, basic criminal matters (generally not trials and appeals), uncontested divorces, adoptions, immigration visa applications, basic will drafting.

Hourly Billing:

Hourly billing is the more traditional approach to paying an attorney. An hourly rate is set for the work to be done, and the attorney tracks the hours he or she spends on the work, often down to the tenth of an hour. A good attorney will also track what is accomplished during each time period, and the hourly rate may differ if the work is research and writing, time in court, or travel time. Hourly rates also vary depending on where the attorney is located and the area of law in which he or she works.

Hourly billing can sometimes seem daunting for the client because it is unknown how much the final fee will be. But some attorneys are able to make fairly accurate estimates of the time it takes to do things, especially if he or she has been working in that field for a while. Most often a client will have to pay an initial amount, called a retainer, and the attorney will use that amount to begin paying the hourly fees. The client will be asked to add to the retainer as it is depleted.

Some common times when hourly fees are used: trial and preparation for upcoming trial (whether civil or criminal), appeals work, estate planning, complicated divorce actions (disputed or when children are involved), custody hearings, motion hearings, or when projects are indefinite in scope or subject (like just keeping an attorney on retainer for business consultations).

Contingent Fees:

Contingent fees are like a combination of fixed fees and hourly fees. A contingent fee means that the attorney getting paid is contingent (relies on) the client winning some money at trial or in a settlement. The attorney will take some percentage of the money won as payment; this percentage is determined at the time the client hires the attorney. Sometimes clients are required to pay for all filing fees and court costs, but otherwise the client is not responsible for any payment if the case is lost.

The hourly part comes in if the attorney is fired prior to the settlement. Then the client often owes the attorney his or her normal hourly rate for work already completed. Again, an attorney will track these hours and will often keep the client updated about how much time has been spent on the case.

Some common times when contingent fees are used: anytime there is a civil lawsuit and a money settlement is expected (car accidents, employer discrimination, civil rights claims, worker’s compensation claims).

**Note** Contingent fees are not permitted in some situations because it is considered bad for the public. No contingent fee agreements are allowed in divorce cases, child custody cases, criminal cases, and other similar issues where paying the attorney more for winning does not promote the good of all persons involved.