Cruel and Unusual. The End of the Eighth Amendment - Dissertation Example

However, the punishment is applied on a trivial number of cases where it has been made compulsory. The punishment is irregularly and unfairly applied. In a country of over 200 people, the Justice Brennan observed that it was applied less than fifty people. As a result, the practice was perceived to be unconstitutional and prejudicial in the circumstances (Bigel, 59). The Justice concluded that the state is expected to confine the convicts in prison rather than kill them arbitrarily. The application of death penalty for the mentally retarded was considered to be unfair and cruel by the eight amendments.

According to Justice Brennan, death treats members of human race in an inhumane manner (Bigel, 51). Capital punishment suggests that human beings can be used and discarded at will. In the Gregg v. Georgia case, it was observed that death in inconsistent with human rights. Justice William Brennan observed that even the vilest criminals were entitled to human rights and human dignity. Civilized treatment of human beings demands that the ultimate fate of a human being should not be made subject to human judgment (Bigel, 19).

According to the premise of 8th amendment, the death penalty violates the premise of civilized treatment as guaranteed in the clause. According to Brennan, death penalty is cruel and should be classified as unusual form of punishment because it is prohibited by the clause. This formed the basis for stating that death punishment violates 8th and 14th amendment. According to Justice John Roberts, in the Baze verses Rees case, the pain experienced in the process of execution does not constitute unusual or cruel death.

He argues that the pain is objectively tolerable risk. Justice john Roberts argued that punishment through execution was the most human method known in Kentucky and many other states. He disagreed with the notion that death penalty is a violation of 8th amendment because is cannot be perceived to be probative with regard to careless killing or infliction of pain (Bigel, 31). He acknowledged that the society is moving towards more humane forms of capital punishment. Death punishment challenges the evolving standards of human decency.

The state is limited when it come to power over human life. According to Justice Potter Stewart, death punishment has a strong history of acceptance and is expected to apply to death row conflicts (Bigel, 39). The arguments against executions are challenged as emotional and unbalanced. Chief Justice Warren in the case of Trop verses Dulles argued that capital punishment does not violate the concept of cruelty as defined by the constitution in the United States. He argued that the punishment is imposed according to the enormity of the crimes or crime committed.

The traditional penalties need to be observed and appreciated according to the law. The chief justice urged the legal fraternity to draw a demarcation through the 8th amendment to deal with the evolving decency standards that are expected to mark a shift of societal perception. However, he suggested that it may not be appropriate to dismiss death penalty in entirety. Capital punishment is said to enhance deterrence. Deterrence is the belief that the severity of a crime can discourage the members of the society from performing criminal acts.

It has been argued that capital punishment is known to cause increased violence rather than reduce it (Bigel, 59). This is referred to as