Lincoln Memorial University Law Review Archive


The Constitution of the United States prohibits the infliction of “cruel and unusual punishments.” However, a consistently asked question is what constitutes cruel and unusual punishment. In 1958, the Supreme Court stated that “the basic concept underlying the Eighth Amendment is nothing less than the dignity of man,” and recognized that the “words of the [Eighth] Amendment are not precise, and that [the Court’s] scope is not static.” Thus, “[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Accordingly, the constitutionality of the death penalty—specifically the implementation of it—depends on what society deems appropriate at a given time.

To date, the death penalty does not per se constitute cruel and unusual punishment in violation of the Eighth Amendment. However, as society’s standard of decency has narrowed, certain impositions of the death penalty have been found to constitute cruel and unusual punishment. Specifically, a death sentence is only warranted for offenders who have committed first-degree murder. Additionally, the death penalty cannot be imposed on intellectually disabled individuals or juveniles because these specific classes of offenders essentially have a reduced criminal culpability, rendering the punishment of death disproportionate.

Recently, there has been a growing controversy in the United States as to whether executing an offender suffering from a severe mental defect constitutes cruel and unusual punishment. Post-traumatic stress disorder (PTSD) is a severe mental defect that has historically carried little weight as a defense in the criminal justice system. However, as the American people develop a better understanding of PTSD and the effect it can have on an offender’s criminal culpability, its role in a criminal defense should be weighed more heavily. For PTSD to play a valid role in the criminal justice system it must be accurately understood, diagnosed, and deemed admissible. Furthermore, an admissible PTSD diagnosis must be appropriately placed in a defense.

Initially, PTSD must be diagnosed by a qualified mental health physician, and that physician must testify as an expert witness at trial for the offender’s PTSD diagnosis to be admissible. While the admissibility of an offender’s PTSD is essential, appropriately placing a PTSD diagnosis in the offender’s defense is equally important. There are three potential places for PTSD to fit within a defense. First, PTSD seemingly would fit within the insanity defense. However, PTSD would fall in-between the cracks of the inconsistent tests applied in various jurisdictions throughout the United States. Second, it seems appropriate to consider PTSD as a mitigating circumstance to be weighed against the case’s aggravating circumstances at the sentencing phase of trial. However, an offender’s mental illness does not generally carry much weight as a mitigating circumstance in a capital case, and PTSD is such a severe mental defect that it should carry a significant amount of weight. Thus, according to today’s standards of human decency, an exclusionary category should be created to exempt offenders who were suffering from PTSD at the time of the offense from the death penalty.

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