The Eighth Amendment of the Federal Constitution prohibits cruel and unusual punishment; Article 1, Section 13 of the Pennsylvania Constitution reiterates this prohibition. In order to make a claim of cruel and unusual punishment, a person has to look to see if the scope of the crime matches the penalty of the punishment. An obvious example could be: the punishment for stealing a shirt from a department store is getting your hand chopped off. What is cruel and unusual is judged by the standards that ordinary people hold today, in the modern world. Therefore, what is cruel and unusual could change as standards and morals change.

Currently in Pennsylvania, cruel and unusual punishment consists of:

• Executing a mentally retarded person or a person adjudicated legally insane (a mere mental disability is not always going to be sufficient). Atkins v. Virginia (U.S. Supreme Court); Commonwealth v. Banks.
• Housing persons in a prison which, from both an objective and subjective point of view, denies the prisoner the “minimum of life’s civilized necessities” and where the prison officials act with deliberate indifference to the health and safety of prisoners. Neely v. Department of Corrections.
• Punishments which are wholly and irrationally disproportionate to the crime; the prohibition is against extreme sentences which are grossly disproportionate to the crime. Commonwealth v. Yasipour.
• Excessive fines (although what constitutes “excessive is difficult to establish and largely relies on what the statutory maximum for the crime is, and whether the amount of money sought in some way recompenses for the illegal activity). Commonwealth v. Schill.
• Life in jail without possibility of parole or the death penalty for persons under the age of 18 at the time the crime was committed. Commonwealth v. Chambers.

In Wyoming, the prohibition of cruel and unusual punishment, Art 1, s. 14, is phrased differently but has been held to have the same meaning as the Eighth Amendment of the Federal Constitution.

• Treating a prisoner in a way which creates the unnecessary and wanton infliction of pain contrary to contemporary standards of decency (this includes denying necessary medical and/or psychiatric help). Garnett v. Coyle.
• Punishments which do not uphold the mandate that the penal code only mete sentences which are humane and are based on reformation and prevention of future criminal actions; the prohibition is against extreme sentences which are grossly disproportionate to the crime under the Eight Amendment as well. Oakley v. State; Dodge v. State.
• Proportionality requires looking at 3 things: the gravity of the crime vs. the punishment, the sentences of others with similar crimes in this jurisdiction, the sentences of others with similar crimes in other jurisdictions. Smith v. State
• Wyoming does not have a case specifically regarding execution of mentally retarded or insane persons, but has stated in dicta that it follows the prohibition against executing persons who are incapable of knowing what they did was wrong/ incapable of preventing the wrong. Swazo v. State.
• Requiring civil forfeiture may be a violation of the Eight Amendment and Wyoming Constitution under the excessive fines clause. Doles v. State.

• Wyoming has a more stringent requirement regarding bail than the United States Constitution and requires that if possible all persons not guilty of first degree murder be given a chance to be released on bail. Simms v. Oedekoven.