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Subject Area: Law
Topic: The American Revolution and Constitution

§ 31.: Cruel and unusual punishment in forfeiture of personal liberty and rights of property.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 31.

Cruel and unusual punishment in forfeiture of personal liberty and rights of property.—

In preceding sections4 it has been explained how far the constitutional prohibition of cruel and unusual punishments control the power of the State to inflict capital and corporal punishment. Punishments, which do not restrict or interfere with one’s right of personal security, must involve the deprivation or restriction of one’s personal liberty or right of property, or of one’s civil rights. That any one of these rights may be taken away or restricted, as a punishment for crime, seems never to have been questioned except in one case,1 where the right of suffrage and the right to hold office, were taken away, as a penalty for gambling in violation of the laws of the State. But these were held not to be cruel and unusual punishments in the constitutional sense.

In recent decisions this constitutional provision has been invoked in resistance to the imposition of a new penalty for crime; rather, on the ground that the penalty was excessive in degree when the character of the offense was considered, than that it was inherently cruel and unusual. In all such cases, the new statute increased the severity of the punishment, and in all of them the courts held that the new penalties were not excessive or cruel in the constitutional sense.2 In other cases, this constitutional provision was appealed to as making a statute unconstitutional, which applied ordinary punishments,—fines and imprisonment—to actions, which have been made crimes by statute; in one case, the maintenance of a common nuisance,3 and in another, the killing of wild game in violation of the regulations of the game laws.4 The courts have held that these were not cruel and unusual punishments in the constitutional sense.

A statute has, likewise, been held to be lawful, and free from constitutional objection, which provided that the receiver of stolen goods may be sentenced to the State penitentiary for a term not exceeding five years, or to the county jail for a term not exceeding six months, or both. Double punishment is not cruel or unusual.1

[4]§§ 11, 12a.

[1]Harper v. Commonwealth, 93 Ky. 290.

[2]State v. Reid, 106 N. C. 714; Ex parte Mitchell, 70 Cal. 1; State v. White, 44 Kan. 514; People v. Morris, 80 Mich. 634.

[3]State v. Becker, 3 S. D. 29.

[4]State v. De Lano, 80 Wis. 259.

[1]People v. Perini, 94 Cal. 573.