The Eighth Amendment and its applicability to the states

The history of the relationship between the use of solitary confinement and its potential violation of the constitutional protection against cruel and unusual punishment, as established by the Eighth Amendment of the US Constitution goes back to 1866. One of the initial obstacles in establishing this relationship centered on the jurisdictional applicability of the Bill of Rights as this related to established state law. It was initially argued that the Bill of Rights with its various constitutional protections was the exclusive legal domain of all federal jurisdictions, but did not hold a similar claim on the states. From 1866 to 1892 a number of cases were argued before the Supreme Court with the intent of establishing the degree to which federal constitutional protections could be applied to the states.

In all of the cases argued before the court during this 26-year period, only the decision offered in In re Medley, 1890 established some small degree of protection against cruel and unusual punishment claims. In that case, Medley had been convicted of murder in Colorado and was sentenced to death for his crime. Subsequent to his conviction, a state statute was enacted that required all condemned inmates to be housed in solitary confinement until execution. The court argued that such a stipulation imposed an additional punishment after conviction and therefore amounted to a double penalty that exceeded the legal authority of the state (Rovner, 2016). Given that the requirement of solitary confinement inflicted a greater degree of punishment than was imposed at sentencing, Medley's claim that the statute violated his Eighth Amendment right was affirmed and the additional punishment of solitary confinement was vacated by the court (In re Medley, 1890).

However, in four other cases argued before the court during the same period of years, attempts to extend Eighth Amendment protections to state jurisdictions were denied. In Pervear v. The Commonwealth, 1866, In re Kemmler, 1890, McElvaine v. Brush, 1891, and O’Neil v. Vermont, 1898, the court on each occasion ruled that protection from cruel and unusual punishment as guaranteed by the Eighth Amendment of the US Constitution did not extend to state jurisdictions.