Understanding Cruel And Unusual Punishment

By BetterHelp Editorial Team|Updated March 16, 2022
CheckedMedically Reviewed By Audrey Kelly, LMFT

After hearing about it in the news, you may be interested in understanding the definition of cruel and unusual punishment. You may be surprised to learn, however, that there is no set definition. Cruel and unusual punishment is generally understood to mean the kind of punishment that goes way beyond what you would expect for the behavior being punished.

For example, if a child was caught taking a cookie out of the cookie jar when they weren’t supposed to, and their parent spanked them repeatedly, this could be considered as an example of cruel and unusual punishment. Here, the punishment does not fit the crime when a stern talking-to would have sufficed.

  • The Cruel And Unusual Punishment Amendment

The Eighth Amendment to the U.S. Constitution concerns cruel and unusual punishment. Specifically, it states that people who have been convicted of a crime should not be given cruel and unusual punishment while in prison. Even for those in jail, the Constitution protects the rights of all citizens of the United States, as do the individual laws of the state in which the inmate is imprisoned.

This means, for example, that prisoners should be allowed access to working plumbing (toilets and sinks), and that prisons should be up to code about fire hazards and things of that nature. Prisoners can sue the prison for violating their civil rights if the prison does not follow the conditions of the Eighth Amendment.

To prove such a case, the prisoner must be able to show that the employees working at the prison were aware of the danger they were putting the prisoner in, and yet did nothing to stop it. The prisoner must also be able to show how their rights were violated because of this neglectful or deliberate behavior.

Solitary Confinement

Solitary confinement (a.k.a. “the SHU” or “the hole”) refers to a form of imprisonment where the prisoner is kept away from the other prisoners and has zero contact with any other human beings besides prison staff. This can be for the prisoner’s safety if the staff believes the prisoner is a danger to themselves or others, or as a form of punishment above and beyond simply being in prison, such as violating one of the rules of the prison. For example, getting into a fight with and injuring another inmate may result in a punishment of solitary confinement.

A sentence of solitary confinement can span days to months or even years. This is where people say that solitary confinement can be cruel and unusual punishment akin to torture because such imprisonment wreaks havoc on a person’s mental stability. Experts say that solitary confinement, when used, should be instituted as infrequently as possible.

Solitary confinement has, like many other forms of cruel and unusual punishment, been misused over the years. One such use has involved immigration detention centers and the separation of a detainee who knows their rights. The objective here is to keep the informed detainee away from the other detainees, so as not to enlighten the remainder of those detained and incite a riot. There have also been concerns that prisoners have been placed in solitary confinement as punishment for things that were no fault of their own, such as religion, sexuality, and race.

People need human interaction to survive. Those who criticize solitary confinement thus call it a form of cruel and unusual punishment. The effects that solitary confinement can have on a person’s brain range from depression and anxiety to suicidal ideations and existential crises.

If you think you may hurt yourself or attempt suicide, reach out to 911 or call a suicide hotline. In the U.S., you can dial 1-800-273-TALK (1-800-273-8255) to reach the National Suicide Prevention Lifeline. Or, use the webchat at suicidepreventionlifeline.org/chat.


Torture, by definition, is to deliberately and severely hurt another person, either physically or psychologically, either for one’s gain, or to elicit some kind of reaction from the person being tortured. For instance, torture has been used in the past as an interrogation technique to extract information from people who wouldn’t otherwise confess such information, like an enemy soldier.

There are several laws in the United States against torture, including the Geneva Conventions (more on that later). In June of 1987, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was enacted. Article 2 of the Convention states that there exist “no exceptional circumstances whatsoever where a state can use torture and not break its treaty obligations.”

California’s “Three Strikes” Law

California follows something called the “Three Strikes” law, which was passed in 1994 and has since garnered loads of criticism. Under the Three Strikes law, if you have been previously convicted of two serious felonies, then you get life in prison upon your third conviction, no matter how serious (or not) that third crime was. Three strikes and you’re out. Or, rather, “in,” in this case.

The Three Strikes law was passed after Richard Allen Davis, a violent felon, kidnapped and murdered 12-year-old Polly Klaas in Petaluma, CA. This shook the nation to the point where voters said they didn’t want a repeat offender to be given a chance to do something so horrid again. And so, with 72 percent of the vote, Proposition 184 – the “Three Strikes” law – was passed the following year, when the public’s anger and sadness were still fresh.

Now, however, a convict with two serious felonies on his record, no matter how recent, can be imprisoned for life for something as small as shoplifting a pair of pants or possessing a minute amount of a drug with no intention to sell. This is what makes the Three Strikes law so controversial.

  • Is Capital Punishment “Cruel And Unusual”?

The concept of whether capital punishment or the death penalty, is a form of cruel and unusual punishment has been hotly debated for some time now. One of the most popular arguments has nothing to do with the killing of another person but instead with the issue of money. Those who have done the math say it costs much more when an inmate continues to appeal the decision of the death penalty than it does for them to just accept their life and live out their lives in prison.

Those against the death penalty argue that the government has been wrong before, that innocent men and women have been convicted of crimes they did not commit, and to then end their lives is indeed a form of cruel and unusual punishment.

Additionally, throughout history, how capital punishment has been carried out has qualified as cruel and unusual punishment because of the often slow and agonizing ways that people would be put to death. Some of these methods may have included being boiled or crushed to death, among other horrid tactics.

According to British journalist Michael Portillo, in an interview he conducted back in 2008 on the television show Horizon, for capital punishment to be carried out today, there are protocols put in place to ensure that the punishment is not torturous. Such protocols include:

  • The inmate’s death must be as quick and painless as possible.
  • The executioner should be informed of how to perform the procedure without causing the inmate to suffer.
  • The method of execution should not be gruesome, to prevent the executioner from being tortured by performing it.
  • The inmate is not allowed to participate in the execution, to prevent unintentionally (or intentionally), additional suffering that the inmate may inflict upon himself or herself.

The Geneva Conventions

The Geneva Conventions are a set of rules that must be followed during wartime. Specifically, these rules direct a country on how best to treat enemy troops who are wounded and whom they capture. In other words, while soldiers may want to inflict torture upon a captured or already wounded an enemy soldier, the Geneva Conventions prevent them from doing so. The Conventions protect that soldier from suffering cruel and unusual punishment at the hands of the enemy, which would be carried out against him simply because he is the enemy.

The second of the Conventions set out clearer rules in that no torture is permitted to take place while at sea. The third of the Conventions expands upon the rules even further, protecting those troops who become prisoners of war (POWs). Despite taking an enemy soldier into custody, countries are bound by the Geneva Conventions to treat them humanely, to give the soldier’s home country information about their condition, and to allow representatives from neutral countries to check in on them.

Have you or someone you know been the victim of cruel and unusual punishment? Our BetterHelp counselors can offer you guidance as to what your next steps should be.

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