The Curious, Consequential History of “Cruel and Unusual Punishments”
March 17, 2025
Article 5 of the Universal Declaration of Human Rights (1948) reads: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” That prohibition is repeated in Article 7 of the International Covenant on Civil and Political Rights (1966), with the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) also barring torture—defined in Article 1 as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person,” whether to punish or coerce a confession—and, as Article 16 states, “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.” The “roots” of the right to be free from torture and cruel, inhuman and degrading treatment or punishment, Professor M. Cherif Bassiouni wrote in the Duke Journal of Comparative & International Law in 1993, “are found in the prohibition against ‘cruel and unusual punishments’ in the English Bill of Rights” and in the equivalently worded “Eighth Amendment of the United States Constitution.”
The Universal Declaration of Human Rights (UDHR), as well as the widely ratified International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT), laid the foundation for the prohibitions against torture and cruel, inhuman and degrading treatment (CIDT) to be recognized as peremptory, or jus cogens, norms of international law. In ratifying the ICCPR and the CAT, however, the United States filed reservations to both of those U.N. instruments, asserting that the treaty prohibitions meant “cruel and unusual punishments” as defined by the Eighth Amendment. “[W]hen the United States became one of the original signing nations” of the UDHR, law professor Jonathan Simon writes in Mass Incarceration on Trial (2014) of the international prohibition against CIDT, “legal experts on both sides of the Atlantic assumed that these words meant largely the same thing as the Eighth Amendment’s ban on ‘cruel and unusual punishment’.” The Eighth Amendment (1791) prohibition of “cruel and unusual punishments”—like the ICCPR and the CAT, a consequential milestone in the history of human rights—was derived from identical bars in the English Bill of Rights (1689) and the Virginia Declaration of Rights (1776), thus sparking considerable interest among jurists and scholars as to the origins of that somewhat peculiar phraseology.
In America’s founding era, revolutionaries such as Patrick Henry and George Mason saw the bar on “cruel and unusual punishments” as prohibiting torture, although torture was then largely understood by lawmakers to refer to then-prevailing inquisitorial methods of judicial torture in continental Europe (think Spanish Inquisition). One member of Congress, Representative Samuel Livermore of New Hampshire, said the Eighth Amendment’s language “seems to express a great deal of humanity” but thought the provision unnecessary, offering this observation: “No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel?” Another legislator at the First Congress, Representative William Loughton Smith of South Carolina, “objected to the words ‘nor cruel and unusual punishments’” because he viewed their “import” as being “too indefinite.” In spite of those objections, the historical record shows that the Eighth Amendment’s text was “agreed to by a substantial majority.” In that era, America’s founders embraced the maxim of Montesquieu that any punishment that goes beyond necessity is “tyrannical,” and they also greatly admired Cesare Beccaria’s On Crimes and Punishments, which further promoted that maxim. Beccaria’s book was the first published text of the Enlightenment to make a fulsome argument against capital punishment, even for the crime of murder.
In the late nineteenth century, when death sentences were still widely used, the U.S. Supreme Court—ironically, in two decisions that approved executions by firing squad and electrocution—expressly held that the Eighth Amendment forbids torture. Today, the Supreme Court continues to allow executions in spite of the Eighth Amendment’s prohibition of cruel and unusual punishments, even though it simultaneously renounces torture and even though America’s condemned inmates now spend, on average, more than twenty years on death row before their execution (or commutation or exoneration, as the case may be). Torture was once seen as operating principally upon the body, with those accused of crimes subjected to water torture or the rack to secure confessions. The law’s prohibition of torture, however, is now understood to bar both physical and psychological forms of torture, with the Third Geneva Convention (1949)—adopted shortly after the UDHR—expressly prohibiting “physical or mental torture” of prisoners of war. After the adoption of the non-binding Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975), the binding CAT thereafter broadly—indeed, absolutely—prohibited torture, “whether physical or mental” in nature. Under the law, no public emergency—not even war, or threat of war—can be used to justify torture, and countries are barred from deporting or extraditing people to countries where they would be subject to torture.
The U.S. Supreme Court and legal scholars have long identified the English Declaration of Rights, codified as the English Bill of Rights (1689), as the first usage of the “cruel and unusual punishments” terminology. The English Declaration of Rights recited that, in King James II’s reign, “illegal and cruel punishments” had been “inflicted,” with its tenth clause then declaring in hortatory fashion: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The prohibitions against excessive bail and excessive fines and the final phrase—“nor cruel and unusual punishments inflicted”—were later incorporated into various American state constitutions and the U.S. Constitution’s Eighth Amendment. George Mason was the principal drafter of Virginia’s Declaration of Rights, with James Madison—his fellow Virginian and a slaveholder—incorporating the bar on “cruel and unusual punishments” into the U.S. Bill of Rights. In 1969, one legal scholar, Anthony Granucci, described the wording of the equivalent English bar on “cruel and unusual punishments” as the product of “chance and sloppy draftsmanship.” The Eighth Amendment famously reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
It turns out that the U.S. Supreme Court and Eighth Amendment scholars have misidentified the English Declaration of Rights as the first appearance of the “cruel and unusual punishments” language, with Justice Thurgood Marshall, relying on Anthony Granucci’s scholarship, once observing that the use of “unusual” in the English Declaration of Rights “appears to be inadvertent.” In a new piece of scholarship forthcoming in the British Journal of American Legal Studies titled “Lost and Found: The Forgotten Origins of the ‘Cruel and Unusual Punishments’ Prohibition,” I debunk the conventional account of the origins of the “cruel and unusual punishments” phraseology—spelled “cruell and unusuall punishments” in some early English sources. The standard account of how that terminology first emerged during England’s Revolution of 1688–1689, popularly known as the “Glorious Revolution,” is woefully incomplete because it fails to consider long-forgotten, far earlier uses of the cruel and unusual punishments terminology.
These prior usages stretch back as far as the early 1600s, during the reign of King James I. The Generall History of the Magnificent State of Venice (1612), published in London, contains a reference to “A cruell and unusuall punishment” in its index and marginalia. That reference describes live burials of priests, their heads pointed downwards, between the two massive columns in Venice next to the Doge’s Palace and near St. Mark’s Basilica. Written by Thomas de Fougasses of Avignon in France, that Venetian history was originally published in French in 1608 before being translated into English. Abuses Stript, and Whipt (1613), the satire of the English courtier and poet George Wither (1588–1667), also describes the “brazen bull” of the tyrant Phalaris—a hollow metal bull heated by fire to kill anyone placed inside—as “That cruel’st and unusual’st punishment.” That passage from Abuses Stript, and Whipt was later reprinted in Juvenilia (1622), a collection of George Wither’s poetry, with Wither later fighting on the side of Parliament during the English Civil War. Such references show that the prohibition on cruel and unusual punishments—seen as an “ancient” common law right by the time of its codification in the English Bill of Rights—was anchored in early seventeenth-century linguistic usages.
After its first written appearances in the early 1610s, the “cruel and unusual punishments” terminology subsequently appeared in two Irish-Catholic Ulster Remonstrances (1642). The Ulster Remonstrances were written not long after—and, in the relevant passages, bear striking resemblance to—a clause of the Grand Remonstrance (1641). A 204-paragragh recitation of grievances presented to King Charles I, a believer in the “divine right of kings,” the Grand Remonstrance was ushered through a rebellious English Parliament by John Pym, an MP, shortly before the outbreak of the English Civil War. That Civil War culminated in Charles I’s execution in 1649 and Oliver Cromwell’s rise to power as the Lord Protector of the Commonwealth of England, Scotland and Ireland. Among other things, the Grand Remonstrance complained that “[t]he Court of Star Chamber hath abounded in extravagant censures” and that “His Majesty’s subjects have been oppressed by grievous fines, imprisonments, stigmatisings, mutilations, whippings, pillories, gags, confinements, banishments.” The 1642 Ulster Remonstrances, setting forth the causes that led to an Irish rising that began in October 1641 and lasted into the following year, similarly complained about the imposition of “heavy fines, mulcts, and censures of pillory, stigmatizings, and other like cruel and unusual punishments.”
These remonstrances did not come out of nowhere. In the 1630s, England’s prerogative Court of Star Chamber—controlled by Charles I and his Privy Council, including the king’s chief religious advisor, Archbishop of Canterbury William Laud—had ordered prominent Puritans, such as lawyer William Prynne, clergyman Henry Burton, and physician John Bastwick, to be horrendously punished. They were each imprisoned, whipped, pilloried, and had their ears cut off. While a Scottish doctor, Alexander Leighton, had “SS” branded on his cheeks for “Sower of Sedition” after suffering similar punishments in the 1630s, William Prynne—a polemicist and Archbishop Laud’s archenemy—was branded with the letters “S.L.” for seditious libeler.” An Irish equivalent of England’s Court of Star Chamber—the Court of Castle Chamber, also controlled by Charles I loyalists—similarly operated in Dublin and meted out, or threatened to inflict, like punishments. Ultimately, the Court of Star Chamber was abolished in 1641 along with its ecclesiastical equivalent, the Court of High Commission. The use of the pillory, whipping, and branding—once common punishments in England and colonial and early America—were eventually abandoned, too, with the U.S. Court of Appeals for the Eighth Circuit—in an opinion written by future U.S. Supreme Court Justice Harry Blackmun—ruling in Jackson v. Bishop (1968) that the lashing of Arkansas prisoners constituted an unlawful “cruel and unusual punishment.”
Because the cruel and unusual punishments terminology appears in multiple places before the English Declaration of Rights, the use of that phraseology in that document—and as codified in the English Bill of Rights—was plainly neither inadvertent nor the product of sloppy drafting. While it is now clear that the cruel and unusual punishments terminology first emerged to describe hideous methods of execution, like live burials and burning to death in the brazen bull, it is also clear that, by the 1640s, that terminology also referred to a whole host of non-lethal corporal punishments, including the pillory and stigmatizings (or branding of the skin). While Saudi Arabia, in 2011, sentenced six men to have their right hands and left feet amputated as punishment for “highway robbery,” such barbaric and bizarre punishments—from the “ducking” of “scolds,” to the use of public whipping posts, to offenders being put in the pillory and having rotten eggs thrown at them—have long been jettisoned by Western societies.
The cruel and unusual punishments phrase may have begun its life in curious and now-obscure sources—in a book’s index and marginalia, in a satire, and in written protests (or remonstrances). However, that centuries-old history or this legal historian’s quest to answer an imagined Trivial Pursuit question about the first usages of the cruel and unusual punishments verbiage should not obscure—and, in fact, only casts a darker shadow on—the continued use in the twenty-first century by a dwindling number of countries of corporal punishments and state-sanctioned executions. In December 2024, 130 countries at the United Nations called for a global moratorium on executions, and the United States (sadly, not among them) now stands—as documented by Amnesty International—in the company of China, Iraq, Iran, Saudi Arabia, Somalia, and North Korea in using executions. In The Death Penalty’s Denial of Fundamental Human Rights: International Law, State Practice, and the Emerging Abolitionist Norm (2023), published by Cambridge University Press, I argue that death sentences, like mock executions (already classified as acts of psychological torture under international law), must be strictly prohibited as torture because they constitute credible death threats that inflict severe pain and suffering. With non-lethal corporal punishments and mock executions already barred by law in Western societies, capital punishment must be abolished, too, and—like the pillory, the ducking stool, ear cropping, and the lash—relegated forever to the history books.