The object of punishment is to reform the offender, to deter him and others from committing like offences, and to protect so ciety. See 4 Bla. Com. 7; Whart. Cr. L. 3, 4, 7; Rutherforth, Inst. b. 1, c. 18. A state may provide for a severer punishment for a second than for a first offence, provided it is dealt out to all alike ; Moore v. Missouri, 159 U. S. 673, 16 Sup. Ct. 179, 40 L. Ed. 301.
The constitution of the United States, Amendments, art. 8, forbids the infliction of cruel and unusual punishments. This ap plies only to acts of congress and to the fed eral courts; James v. Com., 12 S. & R. (Pa.) 220; Barker v. People, 3 Cow. (N. Y.) 686, 15 Am. Dec. 322; and does not apply to the states; O'Neil v. Vermont, 144 U. S. 323, 12 Sup. Ct. 693, 36 L. Ed. 450 (Field, Harlan, and Brewer, JJ., dissenting). Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the federal constitu tion; In re Kemmler, 136 U. S. 436, 10 Sup. Ct. 930, 34 L. Ed. 519.
A state statute which provides for the punishment of death by electricity, and which is held by the state courts not to in flict a cruel and unusual punishment, does not abridge the privileges or immunities of a convict under the federal constitution; McElvaine v. Brush, 142 U. S. 155, 12 Sup. Ct. 156, 35 L. Ed. 971.
What punishment is suited to a specified offence must in general, be determined by the legislature, and the case must be very extraordinary in which its judgment could be brought in question. A punishment may possibly be unlawful because It is so mani festly out of all proportion to the offence as to shock the moral sense with its barbarity, or because it is a punishment long disused for its cruelty until it has become unusual; Cooley, Const. 401. So, for example, is the
punishment of depriving a native of China of his hair ; 18 Am. L. Reg. 676. Whipping, as a punishment for stealing mules, is not contrary to this provision; Garcia v. Terri tory, 1 N. M. 415. In New York, where a general law created a crime and fixed the maximum of its punishment, a special stat ute operating only in localities, or upon par ticular individuals, whereby, for no percepti ble reason, the same identical crime, which consists in the violation of a statute appli cable to the whole state, can therein or in those persons be punished with double the severity that it can be elsewhere in the same state, is within the prohibition of section five of article one of the constitution of the state as to "cruel and unusual punishments"; In re Bayard, 61 How. Pr. (N. Y.) 294; State v. Whitaker, 48 La. Ann. 527, 19 South. 457, 35 L. R. A. 562.
Sentence for a term not exceeding that prescribed by the statute cannot be regarded as a cruel or unusual punishment; Jackson v. U. S., 102 Fed. 473, 42 C. C. A. 452. Ster ilization by means of vasectomy is not a cruel or unusual punishment; State v. Feilen, 70 Wash. 65, 126 Pac. 75, 41 L. R. A. (N. S.) 418.
Requiring one who has embezzled over $500,000 of state funds to pay a fine equal to the amount of the embezzlement or suffer life imprisonment is a cruel and unusual punishment where the accused cannot pay it; State v. Ross, 55 Or. 450, 104 Pac. 596, 106 Pac. 1022, 42 L. R. A. (N. S.) 601, 613.
See INFAMY; INFAMOUS CRIME; JEOPARDY;