Cruel and unusual punishment

These exact words were first used in the English Bill of Rights 1689.[1] They were later also adopted in the United States by the Eighth Amendment to the United States Constitution (ratified 1791) and in the British Leeward Islands (1798). Very similar words, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment", appear in Article 5 of the Universal Declaration of Human Rights adopted by the United Nations General Assembly on December 10, 1948. The right under a different formulation is also found in Article 3 of the European Convention on Human Rights (1950) and in Article 7 of the International Covenant on Civil and Political Rights (1966). The Canadian Charter of Rights and Freedoms (1982) also contains this fundamental right in section 12 and it is to be found in Article 4 (quoting the European Convention verbatim) of the Charter of Fundamental Rights of the European Union (2000). It is also found in Article 16 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984), and in Article 40 of the Constitution of Poland (1997).[2] The Constitution of the Marshall Islands, in the sixth section of its Bill of Rights (Article 2), prohibits "cruel and unusual punishment", which it defines as: the death penalty; torture; "inhuman and degrading treatment"; and "excessive fines or deprivations".[3]

There is great discussion as to whether capital punishment is considered cruel and unusual. Common arguments are that capital punishment is more expensive when factoring in appeals versus life in prison, and that the government has been wrong before on death penalty cases (therefore, the government could be wrong again, and the government ought not have the authority to end a life). These two arguments alone may or may not qualify under the tests the government puts forth, which could also be considered arbitrary itself, especially if society is not informed enough on these considerable facts. For most of recorded history, capital punishments were often deliberately cruel and painful. Severe historical execution methods include the breaking wheel, hanged, drawn and quartered, mazzatello, boiling to death, death by burning, execution by drowning, death by starvation, immurement, flaying, disembowelment, crucifixion, impalement, crushing, execution by elephant, keelhauling, stoning, dismemberment, sawing, slow slicing, blood eagle, bamboo torture and necklacing.[6]

In 2008, Michael Portillo on the show Horizon argued that in ensuring an execution is not of a cruel and unusual nature, the following criteria must be met:

• Death should be quick and painless to prevent suffering for the person being executed;
• Medical education should be provided to the executioner to prevent suffering caused by error;
• The death should not be gory (to prevent suffering for those carrying out the execution); and
• No co-operation should be required from the person being executed, to prevent inaction, distress, and/or suffering caused by the prisoner being required to participate in their own execution.

The show argued that hypoxia appears to meet the criteria, by way of applying a combination of the gases argon and nitrogen, as the person being executed would not feel any physical pain but would experience a euphoric state. It was further argued that these gases could be applied cheaply and efficiently by restraining the prisoner by way of physical restraints and mask.[7]

• Death Penalty Pros and Cons