The Constitution makes it illegal for the government to impose cruel and inhuman punishment. That rule is easier said than done. The assumption is that most punishments are appropriate because they were enacted by elected representatives, and some Justices on the Supreme Court take a hard-line view on cruel and inhuman punishment, interpreting the Constitution to mean what the drafters thought in the late 1700's, when the Constitution was written. That means if the drafters thought it was OK to impose the death penalty for certain crimes short of murder, then the death penalty cannot be cruel and inhuman for those crimes today.

Fortunately, the prevailing view among the courts is that the cruel and inhuman clause of the Constitution should be interpreted in light of evolving standards. This means that as times change, punishments should change, also. That's why the Supreme Court is slowly scaling back the death penalty, particularly with respect to the death penalty for minors and the mentally retarded.

Another development in the evolving interpretation of cruel and inhuman punishment arose on Friday, when a Georgia court released a man from prison who was arrested for having oral sex with a 15 year old. The guy was 17 years old at the time. The court said that a 10 year prison sentence is cruel and inhuman under the circumstances.

Among the court's reasoning: "teenagers should not be classified among the worst offenders because they do not have the maturity to appreciate the consequences of irresponsible sexual conduct and are readily subject to peer pressure; and that teenage sexual conduct does not usually involve violence and represents a significantly more benign situation than that of adults preying on children for sex."

The court also compared the punishment for this kind of sexual behavior with other crimes which carry a less severe punishment, summarizing along the way a good cross section of the kinds of human depravity the courts have to live with each and every day:

A comparison of Wilson’s sentence with sentences for other crimes in this State buttresses the threshold inference of gross disproportionality. For example, a defendant who gets in a heated argument and shoving match with someone, walks away to retrieve a weapon, returns minutes later with a gun, and intentionally shoots and kills the person may be convicted of voluntary manslaughter and sentenced to as little as one year in prison. A person who plays Russian Roulette with a loaded handgun and causes the death of another person by shooting him or her with the loaded weapon may be convicted of involuntary manslaughter and receive a sentence of as little as one year in prison and no more than ten years. A person who intentionally shoots someone with the intent to kill, but fails in his aim such that the victim survives, may be convicted of aggravated assault and receive as little as one year in prison. A person who maliciously burns a neighbor’s child in hot water, causing the child to lose use of a member of his or her body, may be convicted of aggravated battery and receive a sentence of as little as one year in prison. Finally, at the time Wilson committed his offense, a fifty-year-old man who fondled a fiveyear- old girl for his sexual gratification could receive as little as five years in prison, and a person who beat, choked, and forcibly raped a woman against her will could be sentenced to ten years in prison. There can be no legitimate dispute that the foregoing crimes are far more serious and disruptive of the social order than a teenager receiving oral sex from another willing teenager

Here's the article from the New York Times:

Man Convicted as Teenager in Sex Case Is Ordered Freed by Georgia Court

By BRENDA GOODMAN
New York Times

ATLANTA, Oct. 26 — After more than two years in prison for having consensual oral sex with a fellow teenager, Genarlow Wilson shook the hand of a warden Friday at the Al Burruss Correctional Training Center in Forsyth, Ga., and smiled shyly as he walked into the arms of his waiting mother and young sister.

Mr. Wilson’s mother had skipped up to the prison door to wait for him.

“I ran around inside the house 20 times,” said Juanessa Bennett, his mother, describing her reaction to hearing that her son would be set free.

Mr. Wilson, who is now 21, was released just hours after the Georgia Supreme Court ended his 10-year prison sentence. The court said the sentence for the act, which was considered a felony at the time, violated the Constitution’s protection against cruel and unusual punishment.

In a 4-to-3 ruling, the court’s majority said the sentence was “grossly disproportionate” to the crime, which “did not rise to the level of culpability of adults who prey on children.”