1. Introduction

In literary works and also more generally, cruel and unusual punishment creates a network of complex and sometimes conflicting emotional tensions. The reactions can range from sadistic pleasure to profound shock and abhorrence. There can be a strong desire to see the criminal or evildoer suffer. Few desires are as compelling as the desire to see the cruel villain receive cruel treatment in return. Few feel badly for Aaron at the end of William Shakespeare’s Titus Andronicus, to be buried to the waist and left to starve, or Iago at the end of Othello, who is about to endure “any cunning cruelty / That can torment him much, and hold him long” (5.2.333-4). Ramsay Bolton, in George R.R. Martin’s A Song of Ice and Fire (1996–2011), is so odious and cruel that readers eagerly await his comeuppance in a long forthcoming novel (viewers of the television series Game of Thrones have already been treated to his extremely painful and emotionally satisfying death). When punishment to the cruel is meted out there can be a harsh perhaps frightening sense of justice achieved—the villain got what they deserved, however awful. There can be a dark fascination with the methods of cruelty, either by the evildoer or by the state; the ingenuity of the cruelty appeals to an admiration for literary artifice and originality. In opposition can be a sense of pity for the punished and condemnation of the punisher. This is especially strong when the punished has done no wrong or acted ethically and honourably, as in the case of the martyr—the punishment then sanctifies the one who suffers (thereby being somewhat sanctified itself) and condemns to ignominy the one who punishes—or when the punisher is taken to be an unjust tyrant. In this situation, although the cruelty of the tyrant is condemned, there arises a desire for the punisher to be punished at least as severely as they punished the innocent (although it is also possible that one may turn the other cheek—not so much a literary tendency). The meting out of strong retributive punishment to the punisher can be a source of great satisfaction. Modern rights regimes confront this network with the principled conviction that, whatever our emotional drives and needs, it is better for society to abjure cruel and unusual punishment altogether. The prohibition against cruel and unusual punishment is a standard literature has very rarely been able to meet.

2. Legal Framework

The term cruel and unusual punishment first appears in the English Bill of Rights of 1689. The phrase is echoed in article 10 of the American Bill of Rights of 1791. Article 5 of The Universal Declaration of Human Rights of 1948 varies the prohibition to read “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The same wording appears in Article 4 of the Charter of Fundamental Freedoms of the European Union of 2000. The Canadian Charter of Rights and Freedoms of 1982 in section 12 prohibits “any cruel or unusual treatment or punishment.” Black’s Law Dictionary attempts to capture what the term entails in these words: “Punishment that is torturous, degrading, inhuman, grossly disproportionate to the crime in question, or otherwise shocking to the moral sense of the community” (572). The rationale for the prohibition is in part “to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment…. to protect human dignity and respect the inherent worth of individuals” (Charterpedia); the Preamble to the Universal Declaration of Human Rights posits as a general rationale “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,” and asserts, “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind.” Some forms of punishment are clearly taken to fall under the prohibition—torture, for instance, or flogging. Excessive punishment for small misdeeds also clearly falls under the prohibition: it seems clear that eighteenth-century British law that punished with death any theft worth over 12 pence would now, even adjusting for inflation, fall under the prohibition. In other matters the prohibition is less self-evident and open to legal interpretation. In Canada, although it has never been litigated, the assumption is that capital punishment would fall under the prohibition, since it is extreme and irreversible; in the United States on the other hand, capital punishment was prohibited for a time not because it was cruel and unusual in itself but because of the arbitrary and cruel manner in which it was carried out; the means corrected, capital punishment is once again allowed (“Constitutionality of the Death Penalty in America”). A Canadian jurisdiction has also found that solitary confinement—“administrative seclusion”—of longer than 15 days is cruel and unusual punishment (Charterpedia). Elsewhere the situation varies.

As noted above, the Universal Declaration of Human Rights and the Charter of Fundamental Freedoms of the European Union don’t use the word “unusual” but rather “inhuman and degrading.” Canadian jurisprudence also relies less on the unusual in its understanding—otherwise it would be hard, for instance, to include solitary confinement in the prohibition. In large measure it has become difficult to defend a practice simply because it is not particularly unusual—that a certain form of cruelty is commonplace only makes it all the worse. Unusualness, however, remains a fascination in literary works.

3. Literature Review

The legal literature on cruel and unusual punishment is vast. Despite its widespread literary representation, scholarship on cruel and unusual punishment in literature is surprisingly scarce, even close to non-existent.

There exists significant literature surrounding cruel and unusual punishment as both a legal and a social issue. The vast majority of this scholarship was produced within the last ten years, with relatively little produced prior to the year 2000. The period between the early 1970s and late 1990s is dominated by a handful of monograph-length works addressing cruel and unusual punishment as a legal term, particularly with respect to capital punishment, with titles such as Cruel and Unusual: The Supreme Court and Capital Punishment (Meltsner 1973), The Concept of Cruel and Unusual Punishment (Berkson 1975), Facing the Death Penalty: Essays on a Cruel and Unusual Punishment (Radelet 1989), and Against the Death Penalty: Christian and Secular Arguments Against Capital Punishment (Hanks 1997). Other scholars dealing with cruel and unusual punishment during this time, but in journal articles, include Newman (1992), Murray (1993), and Finkel (1995).

Much of the research carried out between 2000 and 2010 follows from that which came before and deals with cruel and unusual punishment primarily in terms of evaluating its morality, its articulation in legislation, and the various factors affecting our interpretation of those documents. The years between 2011 and the present, however, are marked by a significant surge in literature concerning cruel and unusual punishment as a matter of social justice (a focus that has become common across the humanities, including literary studies, and social sciences). During this time, we see a shift in interest from the purely legal to more complex concerns surrounding issues of gender (in)equality (Haueter 2021; Holt 2021); mental and physical disability (Freckelton 2011; Hanson 2021); proportionality (Stinneford 2011; Bach 2013); detention, treatment, and sentencing of juveniles (Wood 2012; Caldwell 2013; Baldry 2018; Phillips 2018; Casey 2020; Paruch 2021); accountability, apathy, or neglect on the behalf of the state (Rodriguez 2016); deliberate ill-treatment of prisoners and migrants (Goldenziel 2018); rising concerns regarding the influence of climate and Covid-19 on prison living conditions (Berkowitz 2021; Nicholas 2021; Pistone 2022; Manwarring 2022); and inhumane methods of execution (South 2014; Eaton 2018).

John F. Stinneford (2011) argues, in the sphere of American law, that the adjective “cruel” is an objective standard concerned with punishment that is unduly harsh in comparison with traditional practices (thereby hanging on to the centrality of the unusual) and not a description of the subjective intent of those instigating or carrying out the punishment. If this is the case in law, the situation in literary works is somewhat more complex. In a work such as Colson Whitehead’s The Underground Railroad (2016), depictions of the cruelty of antebellum slavery run the gamut from systemic and depersonalized mistreatment to everyday individual meanness to the cruel rituals of specific communities to the extraordinary cruelty of particularly sadistic slave owners. Often in literary works the cruelty is not depersonalized and the focus of outrage is on the black-hearted intentions of villainous individuals.

Despite the relative popularity of law and literature as a hybridized area of study, the topic of cruel and unusual punishment as a specific phenomenon occurring within literary representation remains remarkably underexplored. This gap in the literature is particularly surprising given the sheer mass of literary works that engage closely with the subject, but it provides a number of intriguing opportunities for future research.

4. Literary Works Dealing with Cruel and Unusual Punishment by the State

There are many literary works across time and cultures that deal with cruel and unusual punishment now commonly recognized as such by law. These works are likely to have their sympathies more or less in line with contemporary law: cruel and unusual punishment is reprehensible—although retribution in the face of it rather more acceptable.

One set of factors recognized as contributing to cruel and unusual punishment are arbitrariness and unfairness in the process of conviction: a sentence fundamentally incommensurate with the severity of the offense; a radical disregard for the protections of a fair trial. The first of these is a driving force in Victor Hugo’s Les Misérables, the second in Umberto Eco’s The Name of the Rose.

Perhaps the most classic literary example of cruel and unusual punishment is to be found in Les Misérables (Hugo 1862; English translation 2008), in which the total punishments accrued by the protagonist are so disproportionate to the crimes committed as to be astounding to modern readers. The book follows Jean Valjean, a peasant living in 19th century France, who, compelled by abject poverty, steals a loaf of bread to support his family and is sentenced to five years imprisonment at hard labour for his crime. This initial sentence is in itself, to modern sensibilities, an extreme form of punishment for a relatively minor crime driven not by greed but by necessity. To make matters worse, Valjean’s sentence is later extended by an additional 14 years for multiple attempts at escape, for a total of 19 years imprisonment stemming from his original crime. Having successfully escaped from prison for what we as readers hope is the last time, Valjean steals a coin from Petite Gervais in the street, and is subsequently pursued by the police, whose intention is to return Valjean to prison for life. Later, following an incident involving another man being mistaken for Valjean and sentenced to death in his place, Valjean turns himself in to the authorities, only to make yet another escape, this time with the threat of the death sentence in the event he is ever recaptured. Although the individual sentences are not the most extreme examples of cruel and unusual treatment reviewed in this article, the compounding effect of sentence severity in retribution for relatively minor crimes is shocking.

Umberto Eco’s The Name of the Rose (1980; English translation: Eco 1994) is a strong example of cruel and unusual punishment as an act of unfairness perpetrated by the State. The book follows a week in the life of Adso of Melk as he apprentices under William of Baskerville, a friar of the Franciscan Order who is investigating a series of inexplicable deaths within an Abbey of the Order of Saint Benedict. On the fourth day of their stay, they witness the arrival of Bernard Gui, an Inquisitor who has also been drawn to the Abbey by the mysterious events. From the beginning of the trial, we are made aware that Gui is, by virtue of his post, endowed with extraordinary privilege and is not restricted by the law in his search for heretics, nor by any moral concern for the means by which he apprehends them. As the inquisitory hearing unfolds, we are quickly made aware that Gui has carefully orchestrated the situation to force a sentence of guilt, a blatant failure of the ideals of truth and due process that a court of law is expected to uphold. Gui is described as inspiring terror in those who have been accused of any transgression, while at the same time putting on a pretence of beneficence to bring about the outcome most suited to his agenda. Gui uses false logic by claiming that if an individual has committed one crime in a series, then they must be guilty of them all. He ignores the testimony of the accused and pushes him to admit to crimes he has not committed, a situation made worse by the fact that the accused is not provided with council to assist in proving his innocence. The issue is further complicated in that Gui insists on mixing accusations of criminal activity with those of heresy as a means of pushing multiple agendas at once. When it becomes clear that the accused will not admit to the murders voluntarily, Gui threatens him with the prospect of a slow, terrible torture as a means of forcing a false confession. Perhaps most telling of all is the manner in which Gui avoids taking on the responsibility himself of physically administering punishment by leaving those grisly matters to the secular division of the state. In this way, Eco’s book highlights the manner in which the State’s desire for justice is secondary to its agents’ need to protect and increase their own power.

Horrible things happen to the imprisoned in Sophocles’ Antigone, Christopher Marlowe’s Edward II, Shakespeare’s Richard II and Richard III, the Marquis de Sade’s 120 Days of Sodom, Fyodor Dostoevsky’s Notes from a Dead House (1860-62; English translation: Dostoevsky 2016), and Alexander Solzhenitsyn’s One Day in the Life of Ivan Denisovich (1962; English translation: Solzhenitsyn 1963), to name just a few pertinent works. Forms of incarceration and execution were recognized as cruel, inhumane, and unjust long before laws declared them so. For example, two well-known 19th-century novels largely focussed on cruelty in incarceration and execution are Alexandre Dumas’s The Count of Monte Cristo and Charles Dickens’ A Tale of Two Cities.

The Count of Monte Cristo (1844–48; English translation: Dumas 1888) presents the unfortunate lot of Edmond Dantès, who is arrested on false, or trumped up, charges raised anonymously by two of his rivals. Once arrested, he is brought before a corrupt magistrate who, in order to suppress information disadvantageous to himself, imprisons Dantès without a trial or any way to exonerate himself. Dumas largely treats the injustice as arising from the personal corruption of particular officials rather than from the penal system itself. Dantès is locked away secretly in solitary confinement, and those who care about him are allowed no information on his whereabouts, status, and condition. He remains in solitary confinement for fourteen years, a treatment that brings him close to despair, madness, and suicide. He is afforded a fantastical escape and access to enormous wealth, and his overriding concern is then to use his resources to inflict punishment, cruel and unusual in the extreme, on those who have wronged him. As part of a process of hardening his heart, he studies and seeks out forms of cruelty and torture and remains coldly dispassionate witnessing a public execution by “mazzolata,” whereby the condemned is first struck in the head by a mace, then has his throat slit; finally the executioner stomps repeatedly on the prisoner’s stomach to make the blood spurt out.

The bulk of the novel concerns Dantès’ elaborate revenge. One of his wrongdoers is publicly humiliated and brought to suicide; another is bankrupted. Most shocking is what happens to the corrupt magistrate who imprisoned him: Dantès aids and abets the man’s homicidal wife in poisoning and attempting to poison several members of his family and household; ultimately she kills herself but only after poisoning her 12-year-old son; all this drives the magistrate mad. With the death of the 12-year old, Dantès wonders if he has carried things too far. The force of the narrative is largely driven by the desire, of both Dantès and the reader, for revenge and cruelty to be brought down on those who have deeply deserved it. There is, however, some attempt to soften this desire: Dantès’ frightening coldness is often noted, and his vengefulness is partly counterbalanced by the kindness and good will he shows to those with whom he sympathizes. The novel, however, remains largely driven by the need to inflict cruel and unusual retribution.

Dickens’ A Tale of Two Cities (1859) similarly deals with cruel and unjust imprisonment. The plot begins in France with two vaingloriously privileged and cruelly self-serving aristocrats arranging to have falsely imprisoned, by means of a lettre de cachet, an innocent doctor who has witnessed their wicked ways. Dr. Manette is locked away in the Bastille for 18 years, whereby he becomes more or less catatonic. On his release, he is nursed back to mental health, precarious as it is, by his daughter and son-in-law.

The novel largely treats the ancient regime as despicably unjust and a clear cause of the understandable (but condemnable), hateful, and intractable vengeance that comes with the Reign of Terror. The aristocrats who worked to imprison Manette are vengefully dispatched in a way that can feel satisfying and just. Much more than The Count of Monte Cristo, however, Dickens’ novel stands against vengeance and cruelty. Manette’s son-in-law is Charles Darnay, a French aristocrat who has renounced his title and the nephew of the two scoundrels who had Manette imprisoned. When we first meet him he has been falsely accused by another set of scoundrels and is on trial for treason and likely to be hung, drawn, and quartered, an outlandishly cruel and inhumane form of execution. Dickens captures the perverse human fascination with such horrible public punishments:

“Ah!” returned the man with relish; “he’ll be drawn on a hurdle to be half hanged, and then he’ll be taken down and sliced before his own face, and then his insides will be taken out and burned while he looks on, and then his head will be chopped off, and then he’ll be cut into quarters. That’s the sentence.”
“If he’s found Guilty, you mean to say?” Jerry added by way of proviso.
“Oh! they’ll find him guilty,” said the other. “Don’t you be afraid of that.”
(Dickens 1988, 59)

The courtroom is packed with the luridly curious. The judge is biased toward a conviction, which he blithely expects, not because he’s a particularly onerous person, but because he functions as part of a harsh and unjust system. The day is saved, however, by the jury, a stand in for Dickens’ ideal readers, who see past the perjured evidence and the assumption of guilt to find Darnay innocent—much to the consternation and befuddlement of the judge and the bloodthirsty mob.

In the second part of the novel Darnay finds himself hunted during the Reign of Terror by long-ago servants of Manette, who see in Darnay only his aristocratic heritage rather than the kind and upstanding individual he is. The reign of Terror is a historical period embodying cruel and unusual punishment, largely for its implacability and scale. Moreover, those who are after Darnay’s blood are depicted as horribly and cruelly uncompromising individuals. His fate is apparently sealed by a letter Manette wrote when first imprisoned in which he called down vengeance on the aristocrats who imprisoned him and all their offspring—a position Manette no longer holds. Darnay is sentenced to the guillotine. He is spared when Sidney Carton, a man who has never lived up to his and others’ expectations of himself, sacrifices himself in Darnay’s place. The novel ends, therefore, with a scene of secular martyrdom, in which the cruelty and injustice sanctify Carton and raise him to a new and noble sense of purpose.

In the late 20th century, Stephen King, perhaps America’s most acclaimed contemporary writer of popular fiction, offers examples of the cruel and unusual as it is experienced behind prison walls. In his popular story “Rita Hayworth and Shawshank Redemption” (1982), we are presented with instances in which the state and its related institutions are shown to deviate from what we might expect in terms of humane treatment of criminals. These conditions include prolonged bouts of solitary confinement beyond what is considered legal, prison guards who are permitted to inflict grievous bodily harm on prisoners with little to no consequence, and no proper support or rehabilitation of long-term inmates after they are released. While some might argue that such conditions are not unexpected side effects of imprisonment and perhaps even desirable deterrents for would-be criminals, that such issues exist implies that the sentence passed by a court of law, regardless of how considered or just it may seem on its surface, is in fact often only the prelude to a much harder unofficial and unregulated sentence awaiting the convicted once they are behind bars.

In addition to the numerous institutionally inflicted harms faced by prisoners, there also exist those which inmates inflict upon one another. Most notably, King describes the ever-looming threat of falling victim to gang rape, an issue which prison personnel are entirely aware and in control of but choose not to prevent. For example, we see the character of Andy Dufresne, who is the frequent victim of a group known as “the Sisters” in the first few years of his imprisonment, suddenly find himself entirely free from their assaults the moment the warden finds out that he is a banker and capable of laundering prison money. The issue, then, raises multiple concerns—not only that the warden is able to prevent such attacks but chooses not to, but also that he is actively encouraging, if not outright forcing, inmates to commit further felonies to serve his own greed.

Grievous physical and psychological assault aside, perhaps the most fundamental instance of cruel and unusual punishment in this story may be found in the conviction and long-term imprisonment of an innocent man; an issue which we also see reflected in The Green Mile (King 1996). Much like “Rita Hayworth and Shawshank Redemption,” The Green Mile exposes the grisly reality of life behind bars in the American penal system. Both works offer a startlingly sympathetic representation of violent prisoners long incarcerated or awaiting execution on Death Row. King’s narratives strongly encourage us to reconsider and question our own preconceptions of what is ‘right’ when it comes to punishing wrongdoers. Indeed, we as readers find ourselves pitying and even liking some of the prisoners, despite knowing that they are guilty of terrible crimes.

From the outset, we are presented with a character who appears to have committed the rape and murder of two young children. We find later that he is innocent of these crimes and is in fact an individual who has been failed by the justice system, wrongfully imprisoned based on little more than circumstantial evidence, internalized prejudices, and racial discrimination. In this instance, cruel and unusual punishment is shown to be a side effect of the state failing to carry out due diligence—an uncomfortable truth given the righteousness the justice system is intended to represent. Moreover, even after prison staff ascertain his innocence, they are helpless to free him—the state ties their hands and actively refuses to accept such a possibility simply because it is inconvenient and in opposition to the public’s desire to see the man dead.

Unfortunately, such ill-treatment by the state is only the beginning of the cruel punishment awaiting prisoners in the Cold Mountain Penitentiary. As in Shawshank, prisoners on the Green Mile are faced with a reality in which close-quarters incarceration, psychological torment, and morally corrupt guards are a daily reality. However, this novel differs in its treatment of the topic in that it places the majority of its attention on the perspective of the prison staff rather than the prisoners themselves. On the one hand, we have a protagonist who is focused on the preservation of dignity and reduction of suffering of inmates, and on the other, we have examples of corrupt guards who leverage their powerful connections to permit them to act without judgement or culpability. We are shown a character who utilizes this arbitrary social privilege to intimidate, abuse, and demean inmates under his care, not because he is outraged by their crimes, but because they are available and unable to resist his insecurity-driven attacks. This issue comes to a head when the guard deliberately tampers with the electric chair to ensure a prolonged, painful, and horrific death, simply to punish the condemned for making the guard lose face.

5. Divine Cruelty and/in Literary Works

State punishment and traditional attitudes toward punishment are in part informed by and in tandem with traditional religious and cultural attitudes toward divine retribution. Theological systems often present cruel and unusual punishment by a divine actor as right and justified. The traditional analogy between gods and kings is commonplace: kings are god’s lieutenants on earth; God’s state, according to John Milton, “is kingly.” It is not much of a stretch, therefore, to note a connection between divine cruel and unusual punishment and cruel and unusual punishment by the state. State punishment has often been justified as in keeping with divine sanctions. Literature written under such theological understandings often presents cruel and unusual punishment, especially when religiously sanctioned, as just.

The ancient civilizations of Greece and Rome were no strangers to what we would now label cruel and unusual punishment. From the Roman arenas in which slaves were forced to fight one another for the entertainment of the crowds, to the execution of Marcus Licinius Crassus when his captors allegedly poured molten gold down his throat (Cass. Dio, Hist. Rom. 40.27), to accounts of victims being locked and burned alive inside bronze bull statues (Pind. Pyth. 1, 95–98), the literature of the ancient world is filled with examples of human cruelty at its most striking.

The sources present the gods of antiquity as spiteful and petty entities who use their supernatural abilities to inflict pain on those who offend or disregard them. In many instances, the punishment is not only cruel, but profoundly unusual by virtue of being tailored specifically to the individual and the nature of the offence they have committed. The story of Actaeon, for example, a tale which is recounted in the work of Apollodorus (Bibl. 3.4), Ovid (Met. 3.138), and Pausanias (Paus. 9.2), provides evidence of the tendency of the Greek gods to punish humanity severely and strikingly.

In this myth, Actaeon, a proficient hunter, is transformed into a stag and torn to pieces by his own dogs, purportedly in punishment for seeing Artemis’s naked body as she bathed by a spring (the sources vary on this point – Apollodorus claims it was Zeus who punished Actaeon in this way because he had attempted to seduce Semele, cf. Apollod. Bibl. 3.4). Here, though the modern reader may be surprised by the severity of the punishment relative to the crime, there is a strong sense of poetic justice in a disgraced hunter falling prey to his own dogs. In a similar tale, Arachne is transformed into a spider by Athena after she claims she is more skilled with the loom, a seemingly fitting fate for a weaver (Ov. Met. 6.87). Perhaps a more extreme example may be found in the story of Niobe, who had six daughters and six sons, for which achievement she claimed superiority to Leto who only had two. In answer to this slight, Leto’s own children, Apollo and Artemis, killed with a bow all of Niobe’s children, leaving her with none (Hom. Il. 24.596). In this, as in previously mentioned stories, the punishment is, by modern standards, distinctly disproportionate to the crime that has been committed.

In Book 11 of The Odyssey, Odysseus describes his descent into the underworld, where he encounters the souls of the dead. Among these ghosts, he encounters Tityus who was punished for attacking Leto, wife of Zeus, by being tied to the ground, allowing two vultures waiting nearby to devour his liver, and then repeat this process when it inevitably grew back. Tantalus, on the other hand, was sentenced to remain submerged to his waist in a pool of water, with food and drink always just beyond his reach. Finally, Odysseus describes Sisyphus, given the eternal task of pushing a large stone up a hill, only for the stone to roll back down to the bottom before he could ever reach the top (Hom. Od. 11.567). These punishments are striking not only for their cruel nature, but equally so for their specificity and uniqueness.

Finally, perhaps one of antiquity’s most well-known examples may be found in the story of Prometheus, whose fate is described by Aeschylus in Prometheus Bound. According to Aeschylus, Prometheus was responsible for bringing the gift of fire to humanity contrary to the will of Zeus. Once caught, Prometheus was put in chains forged by Hephaestus (Aesch. PB. 75) and then sentenced to eternal punishment by being chained to a rock face so that his liver might be pecked out by an eagle (Aesch. PB. 1025). The nature of Prometheus’ torture is also described briefly by Hesiod in his Theogony, in which the author suggests that, as part of his punishment, Prometheus was also impaled through the abdomen with a wooden stave (Hes. Theog. 520–525). This description is preceded by brief mention of the fates met by Prometheus’ brothers; first Atlas, who was condemned to holding up the heavens for the rest of eternity, and Menoetius, whom Zeus struck with a lightning bolt (Hes. Theog. 507–520).

There exists within ancient Greek and Roman literature a dark tradition of punishing the victims of sexual assault rather than the attacker. The best-known example of such ill-treatment is Medusa, who started life as a beautiful young woman serving as a priestess in a temple dedicated to Athena. According to Ovid’s account, Medusa was pursued and eventually raped by Poseidon. Athena, in response to this attack, transformed her into a horrific monster as punishment for falling victim to Poseidon’s crime, leaving us with the common image of Medusa the gorgon (Ov. Met. 4.753-803). Today, Medusa’s fate is still met with widespread sympathy, and her image has proven popular inspiration for tattoo designs among survivors of sexual assault.

The Hebrew Bible is replete with cruel and unusual punishment: individualized, as in Lot’s wife turned into a pillar of salt or Job subjected to scourge after scourge over a divine wager, and generalized, as when the great flood wipes out nearly all of humanity or the seven plagues are inflicted on the Egyptians. Such harshness is to be feared and accepted rather than questioned: God is jealous and vengeful and righteous.

Traditional Christianity shares with the ancient Greeks and Hebrews a very harsh sense of divine justice, eternal suffering in the afterlife being the strongest instance. The literary work that most thoroughly represents this vision is Dante’s Inferno. The logic of infernal punishment is often attached to a word that appears in Canto 28 of the poem: contrapasso (XXVIII.142), which means something like counter punishment. The word appears only once, in reference to Bertran de Born, who has set a son in rebellion against a father. In Hell each sin is treated with a punishment matching it in nature and severity: each punishment is a specific analogue of the sin committed; the greater the sin, the crueller the punishment, and the punishment lasts forever. The punishment, therefore, is always cruel and unusual, one-off and uniquely suited to the particulars of the offence. In the case of de Born the analogous punishment—setting the son against his head/father—is to have de Born carry his own severed head. As in other theologically slanted texts, the system of punishment is presented as divinely sanctioned justice. Nonbelievers and agnostics might find the logic of justice somewhat less acceptable.

Christianity has a connection to Hebrew theology and shares in large part its ethos of divine punishment. Punishment is both ubiquitous and particularized. Both of the sets of higher beings God creates—angels and humans—sin and are condemned to unprecedented punishment that drastically changes their lot: the rebellious angels are banished from heaven; all humans are subjected to suffering and death they might otherwise have avoided. The literary work, at least from a Christian perspective, that most fully treats these punishments is Milton’s Paradise Lost (1667/74). The explicit purpose of Milton’s epic is “to justify the ways of God to men” (1.26). Divine justice, in all its harshness, is unquestionably right; moreover, God is presented as merciful: offering his own Son’s life as reparation (dealt with in Paradise Regained), providing the sinners with providential grace allowing (some of) them to repent, and promising, ultimately “a paradise within thee, happier far” (12.587).

The passion of Christ puts martyrdom near the centre of Christian justice. Those who suffer cruel and unusual punishment for the sake of their religion are sanctified by what they undergo—the crueller the martyrdom the greater the sanctification, the more we are moved by what is done to them; the punishment itself, most emblematically in the image of the cross, is sanctified and centralized in iconography. Those who inflict the punishment, on the other hand, are only worthy of our harshest feelings, condemnation, and punishment. Two short early modern poems present this dynamic. Richard Crashaw’s “I am the Door” (1646) deals with the spear wound in Jesus’s side. The open wound is a doorway through which the saved can enter heaven; the spear itself has a “sad art,” painful but ultimately necessary and good. The soldier who inflicts the wound, however, has for himself closed the door to heaven and he will never enter, the cruellest punishment. Milton’s Sonnet 18, “On the Late Massacre in Piedmont” (1655), deals with the “slaughter’d Saints” (1) “who kept thy truth” (3), but it is equally, as in its first words, a call for vengeance against the tyrannical papists behind the massacre; ultimately the martyrs will serve as the seeds for overthrowing the cruel oppressor.

6. Literary Genres and Exemplary Instances of Cruel and Unusual Punishment

Certain literary genres are more prone to showing cruel and unusual punishment than others—romantic comedy, with all the lovers’ talk of cruelty and heartache, isn’t where cruel and unusual punishment is likely to arise. Historical works centred on oppressive regimes tend to dwell on excessive cruelty: stories of imperial Rome (the shocking executions of Sejanus and his children in Ben Jonson’s Sejanus [1603], for example); antebellum slave narratives (the whipping of Patsy in Solomon Northup’s Twelve Years a Slave [1853]); Nazi atrocities and death camps (Art Spiegelman’s Maus [1986–91], among many others). Horror stories are often outlandish in their unusual cruelty, although those who perform the cruel actions are less often state representatives. In the 20th and 21st centuries, dystopian narratives are a hotbed of cruel and unusual punishment—one characteristic of dystopias is their utter disregard for the prohibition against such actions (see for example, Eugene Zamiatin’s We [1924] and Margaret Atwood’s The Handmaid’s Tale [1986]). Such genres tend to be unequivocal in their condemnation of cruel and unusual punishment, even as they present it in all its visceral impressiveness.

The thrill of literary inventiveness and a fascination with sensationalism have resulted in certain literary works presenting cruel and unusual punishment in extreme and extraordinary ways, largely beyond what historical reality supports. Three particularly striking examples, featuring the most gnarly and complex inventiveness, are Edgar Allen Poe’s “The Pit and the Pendulum,” Franz Kafka’s “In the Penal Colony,” and George Orwell’s 1984.

Edgar Allen Poe’s “The Pit and the Pendulum” (1843) is an example of cruel and unusual punishment at its most imaginative. From the outset, the reader is struck by the protagonist’s overwhelmingly fearful account of his sentencing, imprisonment, and torture. Poe’s story features a victim who has been sentenced to death and is subsequently subjected to extreme psychological and physical torture, centered around a piece of specially engineered machinery that is designed to carry out the brutal, albeit ingenious, execution. His captors, who are only referred to as the inquisition, subject him to unnecessarily inhumane conditions in punishment for a crime we never hear of. We are given no details of his trial, nor do we have the slightest opportunity to judge for ourselves the severity of his actions; yet we are made certain that no amount of evil could possibly deserve the punishment that follows. The condemned is forced to endure imprisonment in a pitch black, damp, rat-infested prison cell, with what appears to be an imperceptibly deep pit at its centre. He is drugged multiple times without his knowledge and is given only bread and water to sustain him. His is later bound to a wooden bench beneath a slowly swinging blade attached to a pendulum and is forced to remain in this position for many hours, watching as it gradually descends from the ceiling down to his chest. With each pass of the blade, he is forced to confront the understanding that he will gradually be cut in half. The apparatus has clearly been engineered in a way that will bring about as prolonged and brutal death as its makers can devise, and we eventually learn that they are watching from the walls of the cell as the slow execution occurs. Even after the protagonist manages to escape the pendulum, he is forced toward the pit in the floor as the walls begin to close in on him, replacing the prospect of one horrific end with another. Unlike so many examples of cruel and unusual punishment in which the act in question might only qualify as either cruel or unusual, Poe’s story easily meets the criteria for both, and is perhaps the author’s most grisly example of the concept. If nothing else, this tale serves as a gruesome, albeit fantastical, depiction of humanity’s capacity for deliberate, measured cruelty.

Franz Kafka’s “In the Penal Colony” (1919; English translation: Kafka 1971) likewise concerns a fantastical machine which executes a person by slowly tattooing the words of the sentence in outlandishly complex script onto the entirety of the condemned’s body. The process takes many hours, and the condemned suffers excruciating pain. Moreover, the process is founded upon a complete lack of procedural fairness: the accused doesn’t know the charge, is not allowed to mount a defence, and is always guilty. For the focalizing character in the story, as for anyone with a modern legal perspective informed by the prohibition on cruel and unusual punishment, this is an extreme and egregiously inhumane practice. Many readers have read Kafka’s story in this way, or as a clear-cut condemnation of capital punishment. As right as such a view might be, nonetheless it seems to fall short of accounting for the complex resonances that the work sets in motion. The machine is not only cruel but absurd, and yet deep understanding is sometimes informed by absurdity, as is often the case with Kafka. The promise of the machine—hardly realized in the gory and slipshod instance which is the only one we witness and highly unlikely in any others—is that in the final hours the condemned can read the script on the body and enters a state of peace and enlightenment. Ultimately the process is not primarily about cruelty but about understanding. Moreover, something akin to martyrdom is claimed to be affected, so that, we are told, a thoughtful observer might be tempted to undergo the process. The machine itself is a cruel, absurd, and absolutely problematic vehicle for reaching such a state, but that should not diminish the power of the promise itself. The sentence in the script for the execution we see presents a moment such as to stop the reader in their tracks: “Be just,” it reads. Certainly the execution we witness does not get anywhere close to justice; but the admonition itself is starkly powerful and compelling, even if the possibility of justice, what it might entail, and how it might be achieved remain permanently unanswered and unanswerable questions.

The prisoner in George Orwell’s 1984 (1949), like the prisoner in “In the Penal Colony,” is always guilty. The ubiquitous charge is “thoughtcrime,” which runs counter to another basic human right, freedom of thought. Room 101 is a place where someone detained by the state is subjected to what that person fears most strongly, so that in each instance the suffering is unique and personalized—tailor made for each of us. As in Dante’s Inferno, cruelty and unusualness are the central principles at work. We are left to imagine all the various horrible possibilities that Room 101 entails. In the one instance we are shown, Winston’s greatest fear is rats, so a cage filled with rats is put to his face and he is helpless to escape them. The point, however, is not for Winston to be bitten by rats, but to have him break down and submit completely to the state’s psychological control, to be unable to think otherwise than as the state demands. The threat of the punishment rather than the punishment itself is the mechanism at work. For the reader, Room 101 stands for the cruel, relentless, ingenious, shocking, and overpowering dehumanization of totalitarian control. Room 101, in literary and imaginative terms, is an exemplary case of what the prohibition against cruel and unusual is a bulwark against.

7. Cruel and Unusual Treatment

If one expands one’s focus to not only punishment but treatment, as some of the human rights documents do, another large amount of literature comes into play. One has to look no further, for examples, than literature focussing on the institutional mistreatment of children and youth in schools, orphanages, and work houses—Charlotte Brontë’s Jane Eyre (1847) and Dickens’ Oliver Twist (1838), dealing with the harshness of 19th-century England, Kazuo Ishiguro’s Never Let Me Go (2005), set in a dystopia where clones are bred for body parts, and Gord Downie and Jeff Lemire’s Secret Path (2016), concerning residential schools for aboriginal children in Canada, are examples of systemic inhumanity directed toward children: starvation, servitude, negligence, physical, emotional, and sexual abuse, and murder.

8. Extralegal Considerations

One doesn’t have to be a state actor or sanctioned by the state in order to employ cruel and unusual punishment in a non-legal sense and situation. Sadistic and psychopathological villains can be extremely inventive in their uses of cruelty—as with Aaron and Iago. Those who seek revenge after being horribly wronged can resort to very unique and effective forms of punishment—as in Titus Andronicus or The Count of Monte Cristo. Cormac McCarthy’s Blood Meridian (1985) deals with the extreme and inventive cruelty of a particular group of bandits in the old west but also implies that cruelty has a fundamental place in human nature, even in the cosmic order. Such cruelty by private actors is not the cruelty addressed in the various human rights codes, unless the state somehow sanctions it. In literature, however, stories of villains, psychopaths, and revenge plots draw upon and invoke more or less the same set of responses as stories of state cruelty. Therefore, thinking outside the narrowly legal framework might call for a much fuller and more expansive approach to the cruel and the unusual and their place of privilege in our long and ongoing cultural and literary heritage.

9. Conclusion

The range, volume, and variety of cruel and unusual punishment and treatment in world literature are overwhelming and open an almost limitless field of study. One approach to this field is to explore its relations with cruel and unusual punishment as treated in law and human rights codes. Such an approach, however, hardly covers or exhausts all aspects of the cruel and unusual in literature; moreover, such an approach quickly reveals emotional and ethical tensions and divergences between how law treats such punishment and how it is presented, utilized, and exploited in literary works.

References