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.

Fifth Amendment: Right to Remain Silent

The inspiration from this post comes from an article that you may wish to read. It is an article that describes how one attorney took his client’s rights so seriously that he ended up in contempt of court because of it- and how one judge can be so far off base that having a dedicated attorney is not only a benefit, but an absolute necessity. See this ABA article: “Law Firm Says Judge Jailed Defense Attorney for Telling Client to Take the Fifth.”

The Fifth Amendment of the United States Constitution provides the right to remain silent, it is also less commonly known as the right not to incriminate oneself while testifying in court or speaking with law enforcement or prosecutors. You may choose to waive that right and confess, but all defendants are to be made aware of the right to remain silent.

The Fifth Amendment of the United States Constitution is mirrored by the Pennsylvania Constitution in Article I, Section 9, which states that an accused cannot be compelled to give evidence against himself. The Pennsylvania courts have interpreted the two provisions together, and use federal standards when examining the Pennsylvania privilege.

The right applies any time a witness (not just the defendant but any witness) is asked to testify or talk about a subject that may implicate him in a crime. If the witness thinks that his or her statement will show criminal involvement, then he or she has the right to take the Fifth and refuse to answer the question. This right applies anytime the statement may be used against the person, not just at trial, but at any time when the person is asked a question by judicial officers or law enforcement, from initial interrogation to the appeal.

Be careful, because even in a civil proceeding, if the statement could cause criminal proceedings, then the witness may take the Fifth. The same applies to an administrative proceeding. If you are in front of the state licensing board or the employment board or a similar board you have the right to take the Fifth there as well.

An attorney should be prepared to object to any question which may incriminate the witness- especially if the witness is also a defendant. Failure of the attorney to make an objection can result in criminal prosecution (for an ordinary witness), conviction (for the defendant), and a claim of ineffective assistance of counsel (to which every defendant has a Constitutional right).

If a judge has compelled a person to testify despite their claim of the Fifth Amendment, it is grounds for what is called reversible error. Reversible error means that upon appeal, the appellate court will reverse the trial court’s decision and send the issue back for a new trial. Compulsion was what the judge was attempting to do in the article which inspired this post.

The privilege does not extend to consequences which would be non-criminal; this includes liability in a civil suit, community disgrace, loss of employment, or even something which would cause a loss of probation if it does not create any criminal liability. The court will also not stop the jury from making any adverse inferences or assumptions based on the refusal to answer.