Eighth amendment protection excludes claim under due process.

- Since the Eighth Amendment provides explicit protection to prisoners against cruel and unusual punishment, a prisoner could not bring a separate civil rights claim for the same behavior based on substantive due process under the fourteenth amendment. Lee v. Sikes, 870 F. Supp. 1096 (S.D. Ga. 1994).

Because arrestee had not suffered a federal Eighth Amendment violation, the arrestee also had not suffered a violation under Ga. Const. 1983, Art. I, Sec. I, Para. XVII. - Arrestee's 42 U.S.C. § 1983 suit against a county sheriff, alleging that the arrestee was raped by a deputy at the county jail, failed as a matter of law because § 1983 relief did not extend to inadequate hiring practices, and the arrestee failed to raise a fact question as to the constitutional failure to protect, staff, and train claims against the sheriff individually; because the arrestee had not suffered a federal Eighth Amendment violation, the arrestee also had not suffered a violation under Ga. Const. 1983, Art. I, Sec. I, Para. XVII. Boyd v. Nichols, 616 F. Supp. 2d 1331 (M.D. Ga. 2009).

Waiver of fourth amendment rights constitutional.

- Waiver by defendant, while free on bond for drug offenses, of rights under U.S. Const., amend. 4 and Ga. Const. 1983, Art. I, Sec. I, Para. XIII as a bond condition, was constitutional under U.S. Const., amend. 8 and Ga. Const. 1983, Art. I, Sec. I, Para. XVII; it was a reasonable exercise of the trial court's function of balancing the rights of the accused with public safety interests. Rocco v. State, 267 Ga. App. 900, 601 S.E.2d 189 (2004).

Evidence as to parole.

- Fact that defendant was an habitual violator and thus upon conviction would have to serve 20 years without parole did not relate to defendant's character, his prior record, or circumstances of his offense; thus policy forbidding argument regarding one's ability or inability to make parole did not run afoul of either U.S. Const., amend. 8 or 14 and trial court did not err in refusing to allow such argument. Horton v. State, 249 Ga. 871, 295 S.E.2d 281 (1982), cert. denied, 459 U.S. 1188, 103 S. Ct. 837, 74 L. Ed. 2d 1030 (1983).

Imposition of death sentence by electrocution is not cruel and unusual within the meaning of the prohibition of U.S. Const., amend. 8. Mitchell v. Hopper, 538 F. Supp. 77 (S.D. Ga. 1982), supplemented by 564 F. Supp. 780 (S.D. Ga. 1983), aff'd in part, rev'd in part sub nom. Ross v. Kemp, 756 F.2d 1483 (11th Cir. 1985), aff'd in part sub nom. Mitchell v. Kemp, 762 F.2d 886 (11th Cir.), rev'd in part sub nom. Spencer v. Kemp, 781 F.2d 1458 (11th Cir. 1986), cert. denied, 483 U.S. 1026, 107 S. Ct. 3248, 97 L. Ed. 2d 774 (1987), 500 U.S. 960, 111 S. Ct. 2276, 114 L. Ed. 2d 727 (1991).

Death penalty for codefendant not proven to have directly committed murderous act.

- Because the defendant was not only present but active and participating throughout commission of kidnapping, rape, murder, and aggravated assault of which the defendant was convicted, imposition of death penalty was not excessive or disproportionate to the penalty imposed in similar cases even though it was not established whether the defendant or the codefendant fired the gunshots that killed the victim. Johnson v. Zant, 249 Ga. 812, 295 S.E.2d 63 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1236, 75 L. Ed. 2d 469 (1983).

Dismissal of police department employees when their urine tested positive for marijuana did not in any manner involve cruel and unusual punishment within the meaning of the Eighth Amendment. Bostic v. McClendon, 650 F. Supp. 245 (N.D. Ga. 1986).

Discretion to impose death penalty circumscribed by secular law.

- The use by deliberating jurors of an extrajudicial code (not already embodied in their own characters) cannot be reconciled with the Eighth Amendment's requirement that any decision to impose death must be the result of discretion which is carefully and narrowly channelled and circumscribed by the secular law of the jurisdiction. Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989).

It was constitutional error for the court to permit the Christian Bible to go into the jury room at the request of the jurors apparently for consultation in connection with their deliberations after a murder trial. Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989).

Admissibility at trial of defendant's testimony at bail hearing.

- Absent objections grounded on the fifth amendment at the bail hearing, the decision of defense counsel to bring the extraneous issue of guilt or innocence into the bail proceeding did not preclude, on fifth amendment grounds, the use at trial of incriminating testimony given at such hearing. Cowards v. State, 266 Ga. 191, 465 S.E.2d 677 (1996).

Punitive damages.

- In an action against a truck manufacturer, a punitive damages award of $2 million was not so excessive as to violate the due process clauses of the Georgia and United States Constitutions, the Eighth Amendment of the United States Constitution, and the excessive fines clause of the Ga. Const. 1983, Art. I, Sec. I, Para. XVII. Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 436 S.E.2d 635 (1993).

Federal abstention.

- The Court of Appeals abstained from exercising its equitable jurisdiction to hear a class action claim that Georgia's indigent defense system was inherently incapable of providing constitutionally adequate services and that the system therefore violated the sixth, eighth, and fourteenth amendments to the United States Constitution. Luckey v. Miller, 976 F.2d 673 (11th Cir. 1992).

Civil forfeiture.

- Excessive fines analysis should center upon whether the confiscated property has a close enough relationship to the offense. United States v. One 1990 Ford Ranger Truck, 888 F. Supp. 1170 (N.D. Ga. 1995).

Because the forfeited currency was used in the purchase of cocaine, the forfeiture did not violate the excessive fines clause. Lundy v. State, 226 Ga. App. 197, 482 S.E.2d 516 (1997).

Inapplicable to civil forfeiture cases.

- See United States v. All Tract 686.64 Acres of Property, 820 F. Supp. 1433 (M.D. Ga. 1993).

Proper consideration of an eighth amendment challenge to a civil forfeiture should encompass both instrumentality and proportionality analyses. United States v. One 1990 Ford Ranger Truck, 876 F. Supp. 1283 (N.D. Ga. 1995), vacated in part on other grounds, reaff'd in part, 888 F. Supp. 1170 (N.D. Ga. 1995).

Rape of arrestee.

- Arrestee's 42 U.S.C. § 1983 suit against a county sheriff, alleging that she was raped by a deputy at the county jail, failed as a matter of law because § 1983 relief did not extend to inadequate hiring practices, and she failed to raise a fact question as to the constitutional failure to protect, staff, and train claims against the sheriff individually; because she had not suffered a federal Eighth Amendment violation, she also had not suffered a violation under Ga. Const. 1983, Art. I, Sec. I, Para. XVII. Boyd v. Nichols, 616 F. Supp. 2d 1331 (M.D. Ga. 2009).

Registration as sex offender not cruel and unusual punishment.

- Trial court did not err in denying the defendant's motion to strike an illegal sentence because the requirement that the defendant register as a sex offender did not violate the Eighth Amendment's proscription against the imposition of cruel and unusual punishment. Wiggins v. State, 288 Ga. 169, 702 S.E.2d 865 (2010), cert. denied, 131 S. Ct. 2906, 179 L. Ed. 2d 1251, 2011 U.S. LEXIS 4005 (U.S. 2011).

A life without parole sentence is permitted only in "exceptional circumstances," for the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible; for those rarest of juvenile offenders whose crimes reflect permanent incorrigibility; for those rare children whose crimes reflect irreparable corruption - and not for the vast majority of juvenile offenders; life without parole sentences may be constitutionally imposed only on the worst-of-the-worst juvenile murderers, much like the Supreme Court has long directed that the death penalty may be imposed only on the worst-of-the-worst adult murderers. To the extent the decisions in Jones v. State, 296 Ga. 663 (2015) and Bun v. Stat., 296 Ga. 549 (2015) suggested otherwise, they are hereby disapproved. Veal v. State, 298 Ga. 691, 784 S.E.2d 403 (2016).

Cited in Reynolds v. Brosnan, 170 Ga. 773, 154 S.E. 264 (1930); Farnsworth v. Zerbst, 98 F.2d 541 (5th Cir. 1938); Delinski v. Dunn, 207 Ga. 723, 64 S.E.2d 44 (1951); Hilliard v. State, 209 Ga. 497, 74 S.E.2d 65 (1953); Hilliard v. State, 87 Ga. App. 769, 75 S.E.2d 173 (1953); United States v. Jenkins, 141 F. Supp. 499 (S.D. Ga. 1956); Massey v. State, 220 Ga. 883, 142 S.E.2d 832 (1965); Beckett v. Kearney, 247 F. Supp. 219 (N.D. Ga. 1965); Massey v. State, 222 Ga. 143, 149 S.E.2d 118 (1966); Cook v. State, 114 Ga. App. 309, 151 S.E.2d 155 (1966); Carmichael v. Allen, 267 F. Supp. 985 (N.D. Ga. 1966); Stuart v. State, 117 Ga. App. 183, 160 S.E.2d 409 (1968); Grice v. State, 224 Ga. 376, 162 S.E.2d 432 (1968); Burger v. State, 118 Ga. App. 328, 163 S.E.2d 333 (1968); Henderson v. Dutton, 397 F.2d 375 (5th Cir. 1968); Hess v. Blackwell, 409 F.2d 362 (5th Cir. 1969); Goodine v. Griffin, 309 F. Supp. 590 (S.D. Ga. 1970); Morris v. State, 228 Ga. 39, 184 S.E.2d 82 (1971); Ward v. Smith, 228 Ga. 137, 184 S.E.2d 592 (1971); Trammell v. State, 125 Ga. App. 39, 186 S.E.2d 438 (1971); Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972); Fryer v. Stynchcombe, 228 Ga. 576, 186 S.E.2d 885 (1972); Mitchell v. Smith, 229 Ga. 781, 194 S.E.2d 414 (1972); Richards v. Smith, 464 F.2d 1029 (5th Cir. 1972); Hamlin v. Laird, 371 F. Supp. 806 (S.D. Ga. 1972); Jackson v. State, 230 Ga. 181, 195 S.E.2d 921 (1973); Pollard v. State, 128 Ga. App. 470, 197 S.E.2d 158 (1973); Russell v. Henderson, 475 F.2d 1138 (5th Cir. 1973); Goughf v. State, 232 Ga. 178, 205 S.E.2d 844 (1974); Beavers v. State, 132 Ga. App. 94, 207 S.E.2d 550 (1974); Reed v. State, 134 Ga. App. 47, 213 S.E.2d 147 (1975); Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975); Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975); Shields v. Hopper, 519 F.2d 1131 (5th Cir. 1975); Crawford v. State, 236 Ga. 491, 224 S.E.2d 365 (1976); Inmates of Henry County Jail v. Parham, 430 F. Supp. 304 (N.D. Ga. 1976); Peek v. State, 239 Ga. 422, 238 S.E.2d 12 (1977); Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977); Moore v. State, 240 Ga. 807, 243 S.E.2d 1 (1978); Alderman v. State, 241 Ga. 496, 246 S.E.2d 642 (1978); Gunn v. State, 244 Ga. 51, 257 S.E.2d 538 (1979); Seagraves v. Harris, 629 F.2d 385 (5th Cir. 1980); Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980); A.J. Kellos Constr. Co. v. Balboa Ins. Co., 495 F. Supp. 408 (S.D. Ga. 1980); High v. State, 247 Ga. 289, 276 S.E.2d 5 (1981); Zant v. Nelson, 250 Ga. 152, 296 S.E.2d 590 (1982); Moore v. Zant, 722 F.2d 640 (11th Cir. 1983); Davis v. State, 170 Ga. App. 126, 316 S.E.2d 573 (1984); Bowden v. Francis, 733 F.2d 740 (11th Cir. 1984); Hamm v. DeKalb County, 774 F.2d 1567 (11th Cir. 1985); Gravitt v. Graves, 609 F. Supp. 925 (N.D. Ga. 1985); Johnson v. Jones, 178 Ga. App. 346, 343 S.E.2d 403 (1986); Davis v. Pringle, 642 F. Supp. 171 (N.D. Ga. 1986); Patterson v. Fuller, 654 F. Supp. 418 (N.D. Ga. 1987); Howell v. Roberts, 656 F. Supp. 1150 (N.D. Ga. 1987); Kilgo v. Department of Cors., 202 Ga. App. 50, 413 S.E.2d 507 (1991); Fiscus v. City of Roswell, 832 F. Supp. 1558 (N.D. Ga. 1993); United States v. $633,021.67 in U.S. Currency, 842 F. Supp. 528 (N.D. Ga. 1993); Thorp v. State, 217 Ga. App. 275, 457 S.E.2d 234 (1995); Rabern v. State, 221 Ga. App. 874, 473 S.E.2d 547 (1996); Carter v. State, 248 Ga. App. 821, 547 S.E.2d 613 (2001); O'Kelley v. State, 284 Ga. 758, 670 S.E.2d 388 (2008).

Excessive bail provisions apply to misdemeanors.

- The constitutional prohibitions against excessive bail set forth in U.S. Const., amend. 8 and Ga. Const. 1945, Art. I, Sec. I, Para. IX (Ga. Const. 1983, Art. I, Sec. I, Para. XVII) conviction. Jones v. Grimes, 219 Ga. 585, 134 S.E.2d 790 (1964).

When bail may be denied generally.

- The command that excessive bail shall not be required at the very least obligates judges passing upon the right to bail to deny such relief only for the strongest of reasons. Sellers v. United States, 396 U.S. 9, 90 S. Ct. 27, 24 L. Ed. 2d 9 (1969).

A person convicted of an offense punishable by death has no constitutional right to bail pending appeal. Wilcox v. Carter, 545 F. Supp. 1043 (M.D. Ga. 1982).

Reasonably necessary bail constitutional.

- Bail set at an amount higher than that which is reasonably necessary to insure a defendant's presence at trial is unconstitutionally "excessive," in violation of the Eighth Amendment as applied to the states through the fourteenth amendment; however, any requirement which is necessary to provide reasonable assurance of an accused's presence at trial is constitutionally permissible. Gresham v. Dell, 630 F. Supp. 1135 (N.D. Ga. 1986).

Retention of appearance bond to pay fine violates Constitution.

- The addition of any condition to an appearance bond to the effect that it shall be retained by the clerk to pay any fine that may subsequently be levied against the defendant after the criminal trial is over is for a purpose other than that for which bail is required to be given under the Eighth Amendment. Such provision is therefore "excessive" and is in violation of the Constitution. United States v. Rose, 791 F.2d 1477 (11th Cir. 1986).

Defendant failed to prove that the defendant was injured by allegedly excessive bail for drug offenses, since the defendant made no showing that had the drug charges been dismissed, as they allegedly should have been, the defendant could have bond on the remaining non-drug charge. Lambert v. McFarland, 612 F. Supp. 1252 (N.D. Ga. 1984).

$100,000 bail in cocaine case held not excessive.

- Setting bail in the total amount of $100,000 in a case involving two charges of selling crack cocaine was not excessive, because the trial judge was apprised of the defendant's lengthy residency in the community and the defendant's financial status, and weighed these factors against the serious nature and potential consequences of the charges. Mayfield v. State, 198 Ga. App. 252, 401 S.E.2d 297 (1990).

$250,000 bail in murder case held not excessive.

- In a prosecution for murder, based upon the seriousness of the offense charged and the likelihood that defendant would not appear at trial, the trial court did not abuse its discretion in holding that bail of $250,000 originally set was not excessive. Mullinax v. State, 271 Ga. 112, 515 S.E.2d 839 (1999).

Bail in the amount of $750,000 was not excessive where defendant had prior felony convictions and the trial court's decision to increase bail at this habeas proceeding was based on other information not available at the first hearing. Pullin v. Dorsey, 271 Ga. 882, 525 S.E.2d 87 (2000).

Denial of bail not an abuse of discretion nor grounds for habeas petition.

- Petitioner charged with 16 counts of violating the Georgia RICO Act, O.C.G.A. § 16-14-1, securities fraud, and theft, who owned no assets in the United States and had allegedly funneled significant assets to Belize, where the petitioner traveled frequently, was not entitled to bail as of right under O.C.G.A. § 17-6-1(a), Ga. Const. 1983, Art. I, Sec. I, Para. XVII, or U.S. Const., amend. VIII. The denial of bail was not an abuse of discretion, and petitioner was not entitled to a writ of habeas corpus. Constantino v. Warren, 285 Ga. 851, 684 S.E.2d 601 (2009).

Prohibition applies to conviction for criminal offenses.

- The prohibition against cruel and unusual punishment has relation to punishment imposed by sentences on conviction for criminal offenses. Hill v. State, 119 Ga. App. 612, 168 S.E.2d 327 (1969).

The prescription against cruel and unusual punishment applies only after a criminal conviction. Gilmere v. City of Atlanta, 737 F.2d 894 (11th Cir. 1984), modified en banc, 774 F.2d 1495 (11th Cir. 1985), cert. denied, 476 U.S. 1115, 106 S. Ct. 1970, 90 L. Ed. 2d 654, cert. denied, 476 U.S. 1124, 106 S. Ct. 1993, 90 L. Ed. 2d 673 (1986), cert. denied, 493 U.S. 817, 110 S. Ct. 70, 107 L. Ed. 2d 37 (1989).

The Eighth Amendment protects convicted prisoners and does not apply to pretrial detainees. McDay ex rel. McDay v. City of Atlanta, 740 F. Supp. 852 (N.D. Ga. 1990), aff'd, 927 F.2d 614 (11th Cir. 1991).

Cruel and unusual punishment prohibition applicable to convicts only.

- The prohibition against cruel and unusual punishments protects only those who have been convicted of a crime. Metz v. McKinley, 583 F. Supp. 683 (S.D. Ga.), aff'd, 747 F.2d 709 (11th Cir. 1984).

Applicable to states through U.S. Const., amend. 14. - Cruel and unusual punishment clause is made applicable to the states through U.S. Const., amend. 14. United States v. Kaiser, 545 F.2d 467 (5th Cir. 1977).

Standards for determining constitutionality of punishment generally.

- When a form of punishment in the abstract rather than in the particular is under consideration, the inquiry into excessiveness has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain. Second, the punishment must not be grossly out of proportion to the severity of the crime. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).

U.S. Const., amend. 8 prohibits the unnecessary and wanton infliction of pain, as well as gross disproportion between punishment and crime. Any punishment must demonstrably serve some valid penological justification in order to withstand constitutional scrutiny. United States v. Kaiser, 545 F.2d 467 (5th Cir. 1977).

A punishment is excessive and unconstitutional if it makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering, or is grossly out of proportion to the severity of the crime. Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977); Cox v. State, 241 Ga. 154, 244 S.E.2d 1 (1978).

U.S. Const., amend. 8 demands that punishment must not be disproportionate to the offense and that suffering cannot be gratuitously inflicted with no purpose. Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Among the standards in the Fifth Circuit for finding a punishment violative of U.S. Const., amend. 8 are: whether the conditions of confinement shock the court's conscience; whether the sentence imposed is grossly disproportionate to the offense; or whether the sentence imposed offends evolving notions of decency. Cerrella v. Hanberry, 650 F.2d 606 (5th Cir.), cert. denied, 454 U.S. 1034, 102 S. Ct. 573, 70 L. Ed. 2d 478 (1981).

A sentence is disproportionate for Eighth Amendment purposes if the punishment is grossly disproportionate when compared with the nature of the crime. United States v. Elkins, 885 F.2d 775 (11th Cir. 1989), cert. denied, 494 U.S. 1005, 110 S. Ct. 1300, 108 L. Ed. 2d 477 (1990).

Defendant's five-year sentence for interfering with government property was not cruel and unusual punishment within the meaning of U.S. Const., amend. 8, as: (1) it was within the sentencing range specified by O.C.G.A. § 16-7-24(a); (2) it was not so disproportionate to the act as to shock the conscience; (3) the sentence was not retaliatory; and (4) there was no support for defendant's claim that, although convicted of a felony offense, defendant should have received a misdemeanor sentence because defendant committed the offense while in jail for a probation violation. Carter v. State, 267 Ga. App. 520, 600 S.E.2d 637 (2004).

Pre-deportation detention is not punishment because it is incidental to the government's power to control its borders. Sengchanh v. Lanier, 89 F. Supp. 2d 1356 (N.D. Ga. 2000).

Excessive fines clause findings required.

- Where the trial court did not make findings regarding, or even specifically mentioning, the factors that must be considered in analyzing an excessive fines clause claim, vacation and remand for a new order including findings of fact and conclusions of law on those factors was required. Mitchell v. State, 236 Ga. App. 335, 511 S.E.2d 880 (1999).

Different degrees of culpability among co-defendants are relevant to the individualized sentencing mandated by the Eighth Amendment. Buttrum v. Black, 721 F. Supp. 1268 (N.D. Ga. 1989), aff'd, 908 F.2d 695 (11th Cir. 1990).

Requirements of U.S. Const., amend. 8 are defined by reference to the evolving standards of decency that mark the process of a maturing society. Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Cruel and unusual punishment clause is a nonstatic, moral precept designed to curb treatment which offends contemporary standards of decency. Polakoff v. Henderson, 370 F. Supp. 690 (N.D. Ga. 1973), aff'd, 488 F.2d 977 (5th Cir. 1974).

Inquiry in

§ 1983 cases. - In determining whether a state officer has crossed the constitutional line that would make physical abuse actionable in a case alleging cruel and unusual punishment under 42 U.S.C. § 1983, a court must inquire into the amount of force used in relationship to the need presented, the extent of the injury inflicted and the motives of the state officer. Brown v. Diaz, 184 Ga. App. 409, 361 S.E.2d 490 (1987), cert. denied, 485 U.S. 1037, 108 S. Ct. 1600, 99 L. Ed. 2d 914 (1988).

Sodomy sentence not cruel and unusual.

- Defendant's sentence of five years imprisonment and ten years' probation for violation of sodomy statute does not constitute cruel and unusual punishment because it does not shock the conscience. King v. State, 265 Ga. 440, 458 S.E.2d 98 (1995).

Provisions of the Tort Reform Act (O.C.G.A. § 51-12-5.1), relating to punitive damages, violated the due process and equal protection clauses of the federal and state constitutions, violated the excessive fines provisions of both constitutions, and violated the double jeopardy provision of the fifth amendment to the federal constitution. McBride v. GMC, 737 F. Supp. 1563 (M.D. Ga. 1990).

Legislative discretion in devising punishments.

- So long as the General Assembly does not provide cruel and unusual punishments such as disgraced the civilization of former ages, and make one shudder with horror to read of them as drawing, quartering, burning, etc., U.S. Const., amend. 8 does not put any limit upon legislative discretion. Sims v. Balkcom, 220 Ga. 7, 136 S.E.2d 766 (1964); Evans v. State, 228 Ga. 867, 188 S.E.2d 861 (1972).

Where sentences imposed are within the statutory limits, they are not subject to the attack that they constitute cruel and unusual punishment. Johnston v. State, 152 Ga. App. 133, 262 S.E.2d 161 (1979); Covington v. State, 157 Ga. App. 371, 277 S.E.2d 744 (1981); Cerrella v. Hanberry, 650 F.2d 606 (5th Cir.), cert. denied, 454 U.S. 1034, 102 S. Ct. 573, 70 L. Ed. 2d 478 (1981); Cook v. State, 235 Ga. App. 104, 508 S.E.2d 473 (1998).

O.C.G.A. § 17-10-6.1, imposing mandatory minimum sentences in certain cases, does not impose unconstitutionally excessive punishment, and the fact that defendants were 18 years old at the time of sentencing and may have been first offenders did not render the statute unconstitutional as applied to them. Campbell v. State, 268 Ga. 44, 485 S.E.2d 185 (1997).

A determinate sentence which falls within statutorily mandated parameters is not subject to attack on Eighth Amendment grounds. Pollard v. State, 230 Ga. App. 159, 495 S.E.2d 629 (1998); Inglett v. State, 239 Ga. App. 524, 521 S.E.2d 241 (1999); Strange v. State, 244 Ga. App. 635, 535 S.E.2d 315 (2000).

Sentence of five consecutive life sentences for conviction of five counts of selling cocaine was not cruel and unusual punishment, since it was within the statutory sentencing limits for such an offense. Reviere v. State, 231 Ga. App. 329, 498 S.E.2d 332 (1998).

Where the defendant was sentenced as a recidivist to twenty years, ten to serve and the remaining ten suspended, on a count of theft by taking, and twelve months to serve consecutively for giving a false name, these sentences were well within the statutory limits and not so disproportionate as to shock the conscience. Reid v. State, 235 Ga. App. 887, 510 S.E.2d 851 (1999).

Where a defendant was sentenced to five years imprisonment for possession of cocaine, it was within the statutory limits of two to fifteen years, and was not so overly severe or excessive as to shock the conscience. Palmore v. State, 236 Ga. App. 285, 511 S.E.2d 624 (1999).

Defendant's 10-year sentence, to be served consecutively to defendant's related sentence for theft by taking, was statutorily authorized, and, therefore, presumptively did not violate the Eighth Amendment's guarantee against cruel and unusual punishment, and defendant did not rebut that presumption by showing this legislatively authorized punishment was so overly severe or excessive in proportion to the offense as to shock the conscience. Howard v. State, 262 Ga. App. 214, 585 S.E.2d 115 (2003).

Defendant's 25-year sentence for two counts of aggravated child molestation and one count of statutory rape was not cruel and unusual punishment, as defendant's sentence was within the statutory limits of O.C.G.A. § 16-6-4(d)(1) and was not so disproportionate to shock the conscience; defendant knew the victim's age and engaged in the sexual misconduct for an extended period of time. Hunter v. State, 263 Ga. App. 747, 589 S.E.2d 306 (2003).

Trial court properly sentenced defendant to 220 years to serve, followed by 20 years of probation, on 24 counts of sexual exploitation of a child, as such a sentence was within the statutory parameters and did not shock the appellate court's conscious in light of the crimes committed and, in fact, defendant was actually spared serving the maximum amount of prison time authorized by O.C.G.A. § 16-12-100(g)(1). However, the trial court erred by ordering defendant to undergo chemical castration under O.C.G.A. § 16-6-4(d)(2) since such punishment was only for defendants convicted of child molestation. Bennett v. State, 292 Ga. App. 382, 665 S.E.2d 365 (2008).

Defendant's sentence for obstruction of a law enforcement officer, driving without insurance, and failing to register a vehicle of 12 months confinement to be served on probation following 60 days of confinement, $1,500 in fines, 100 hours of community service, and a mental health evaluation was within the statutory limits set by O.C.G.A. §§ 16-10-24(b),40-2-20(c), and40-6-10(b), and did not shock the conscience. Smith v. State, 311 Ga. App. 184, 715 S.E.2d 434 (2011).

Degree of culpability may be considered by the sentencing judge in the judge's discretion. Edwards v. United States, 795 F.2d 958 (11th Cir. 1986), cert. denied, 481 U.S. 1019, 107 S. Ct. 1899, 95 L. Ed. 2d 506 (1987).

Imposition of a higher sentence by a jury upon retrial does not violate the Constitution, unless the increased punishment can be shown to be the product of vindictiveness. Grace v. Caldwell, 231 Ga. 407, 202 S.E.2d 49 (1973).

There is no absolute constitutional bar to imposing a more severe sentence upon resentencing, but vindictiveness must not be the motivating force behind the increased sentence. Pressley v. State, 158 Ga. App. 638, 281 S.E.2d 364 (1981).

Reasons for more severe penalty upon retrial must affirmatively appear.

- In order to assure the absence of such a motivation whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for the judge's doing so must affirmatively appear. Pressley v. State, 158 Ga. App. 638, 281 S.E.2d 364 (1981).

Reasons for imposing more severe sentence must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. Pressley v. State, 158 Ga. App. 638, 281 S.E.2d 364 (1981).

Factual data upon which an increased sentence is based must be made part of record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. Pressley v. State, 158 Ga. App. 638, 281 S.E.2d 364 (1981).

Mandatory child molestation sentence.

- Mandatory sentence for aggravated child molestation of 10 years without parole pursuant to O.C.G.A. §§ 16-6-4(d)(1) and17-10-6.1 was not cruel and unusual punishment as applied to the defendant, despite the fact that the defendant was 18 years old at the time of the act and the victim was only 4 years younger. Widner v. State, 280 Ga. 675, 631 S.E.2d 675 (2006).

Child molestation sentence not cruel and unusual punishment.

- Although the defendant contended that the sentence provided in the amendment to O.C.G.A. § 16-6-4(d)(1), which as a result of O.C.G.A. § 17-10-6.1(b), that sentence was 25 years, followed by life on probation, with no possibility of probation or parole for the minimum prison time of 25 years, constituted cruel and unusual punishment in violation of the Eighth Amendment as applied to the defendant, the sentence was not grossly disproportionate to the defendant's crime since aggravated child molestation committed by the defendant was not a passive felony. Moreover, the juveniles had been tried as adults and sentenced to long periods of incarceration in Georgia, and severe punishments for crimes against children had withstood previous attacks on constitutional grounds. Adams v. State, 288 Ga. 695, 707 S.E.2d 359 (2011).

Life imprisonment for youth convicted of murder.

- Appellant's sentence of two consecutive terms of life imprisonment plus 85 years was not cruel and unusual punishment, despite being 17 years old at the time of the crimes, because the trial court followed the guidance offered in case law and explicitly considered the appellant's relatively young age and explained that the court balanced the appellant's youth against the vicious, mean, violent behavior and the adult conduct engaged in, which included the murder of not one but two innocent bystanders. Jones v. State, 296 Ga. 663, 769 S.E.2d 901 (2015), overruled in part by Veal v. State, 298 Ga. 691, 784 S.E.2d 403 (2016).

Since a sentence of mandatory life without parole was barred for juveniles, the defendant's sentence of life without parole had to be vacated because the trial court did not make any sort of determination on the record that the defendant, who was 17 years old, was irreparably corrupt or permanently incorrigible. Veal v. State, 298 Ga. 691, 784 S.E.2d 403 (2016).

Life sentence for felony murder.

- Defendant's felony murder conviction and life sentence for felony murder did not violate the Eighth Amendment. Rainwater v. State, 260 Ga. 807, 400 S.E.2d 623 (1991), overruled on other grounds, Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993) and, overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).

Life sentence for repeat drug conviction constitutional.

- O.C.G.A. § 16-13-30(d), which mandates a sentence of life imprisonment upon a second conviction for selling cocaine, is not unconstitutional; and it does not violate the fourteenth and the Eighth Amendments to the Constitution of the United States. Grant v. State, 258 Ga. 299, 368 S.E.2d 737 (1988); Crutchfield v. State, 218 Ga. App. 360, 461 S.E.2d 555 (1995).

O.C.G.A. § 16-13-30(d), which mandates a sentence of life imprisonment upon a second conviction for selling cocaine, does not violate due process or equal protection and does not violate state or federal constitutional guarantees against cruel and unusual punishment. Isom v. State, 261 Ga. 596, 408 S.E.2d 701 (1991).

A mandatory life sentence imposed upon a defendant convicted of a second offense of selling cocaine under O.C.G.A. § 16-13-30 does not constitute cruel and unusual punishment under the eighth and fourteenth amendments. Rucks v. State, 201 Ga. App. 142, 410 S.E.2d 206 (1991).

Life sentence for recidivism.

- Imposition of sentence of life imprisonment for armed robbery under recidivist statute, is not cruel and unusual punishment. Chappell v. State, 164 Ga. App. 77, 296 S.E.2d 629 (1982).

The imposition of a mandatory life sentence for recidivism under O.C.G.A. § 17-10-7 does not violate the Eighth Amendment proscription against cruel and unusual punishment. Howard v. State, 233 Ga. App. 724, 505 S.E.2d 768 (1998), overruled on other grounds, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003).

Life sentence for repeat offender of sexual registration statute held unconstitutional.

- Imposition of a mandatory sentence of life imprisonment imposed against a defendant, who was a second time offender, for failing to register as a sexual offender was held unconstitutional as grossly disproportionate to the crime of failing to register. Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485 (2008).

Life sentence for young adult for malice murder.

- Defendant's sentence of life in prison without parole for malice murder and a consecutive five years for possession of a weapon during the commission of a crime was not cruel and unusual punishment due to the fact that the defendant had just turned 20 when the defendant committed the crimes because: (1) there was no state or federal constitutional prohibition against sentencing a young adult to life in prison without parole for committing a homicide; and (2) there was no objective evidence that Georgians, as a matter of state constitutional law, considered the sentence to be cruel and unusual punishment when applied to an adult defendant who committed a homicide. Williams v. State, 291 Ga. 19, 727 S.E.2d 95 (2012), overruled on other grounds by Kimbrough v. State, 300 Ga. 516, 796 S.E.2d 694 (Ga. 2017).

Specific jury finding that defendant killed or intended killing not required.

- A specific jury finding, upon imposition of the death penalty, that the defendant killed, attempted to kill, or intended that a killing or lethal force would be employed, was not required. Ross v. Kemp, 756 F.2d 1483 (11th Cir. 1985).

Effect of jury finding.

- In a malice murder case involving the imposition of the death penalty, in which the jury was instructed on malice murder, and its verdict, supported by the evidence, necessarily established its finding of intent, the federal appellate court was not required to examine the record to determine whether the defendant killed or attempted to kill, or whether the defendant intended or contemplated that life be taken. Johnson v. Kemp, 759 F.2d 1503 (11th Cir. 1985).

Maltreatment occurring prior to trial constitutes no part of the sentences imposed as a result of the trial and, therefore does not constitute cruel and unusual punishment. Hill v. State, 119 Ga. App. 612, 168 S.E.2d 327 (1969).

Due process requires that a pretrial detainee not be punished; therefore, where punishment is imposed without adjudication, the pertinent constitutional guarantee is the due process clause, not the Eighth Amendment. McQurter v. City of Atlanta, 572 F. Supp. 1401 (N.D. Ga. 1983), appeal dismissed, 724 F.2d 881 (11th Cir. 1984).

Pretrial detainees protected by fourteenth amendment.

- Civil rights action by a pretrial detainee against a prison guard, alleging that the guard assaulted the detainee and used excessive force, was properly brought under the fourteenth amendment, not the Eighth Amendment. Telfair v. Gilberg, 868 F. Supp. 1396 (S.D. Ga. 1994), aff'd, 87 F.3d 1330 (11th Cir. 1996).

Cruel and unusual punishment of pretrial detainee.

- A pretrial detainee, who had inadequate food, no blankets or bedding, no sanitation, inadequate medical care, no shelter from the elements other than a concrete cell with broken windows permitting the passage of cold air, all of which endangered the detainee's health, was subject to cruel and unusual punishment. Goodson v. City of Atlanta, 763 F.2d 1381 (11th Cir. 1985).

Use of restraints by correction officers to reduce or eliminate plaintiff's ability to inflict physical harm against either oneself or the officers did not constitute excessive force. Campbell v. Sikes, 169 F.3d 1353 (11th Cir. 1999).

Codefendants need not receive the same sentence. Edwards v. United States, 795 F.2d 958 (11th Cir. 1986), cert. denied, 481 U.S. 1019, 107 S. Ct. 1899, 95 L. Ed. 2d 506 (1987).

Punishment appropriate for diverse federal offenses is a matter for the discretion of Congress, subject only to constitutional limitations, more particularly U.S. Const., amend. 8. United States v. Kitowski, 729 F.2d 1418 (11th Cir. 1984).

Uncertain time of commencement of sentence.

- Sentences given to two defendants which were to be consecutive to their release from detention as illegal aliens were not illegal despite the uncertainty as to when the exact date the sentences were to begin. United States v. Buide-Gomez, 744 F.2d 781 (11th Cir. 1984), cert. denied, 470 U.S. 1059, 105 S. Ct. 1774, 84 L. Ed. 2d 833 (1985).

Denial of parole for 30 years under O.C.G.A.

§ 42-9-39(c) not cruel and unusual punishment. - Since in pleading guilty to four counts of murder and one count of aggravated assault, the defendant admitted a number of acts that a jury could reasonably consider "aggravating circumstances" under O.C.G.A. § 17-10-30(b), and in both Georgia and other jurisdictions, the defendant might well have been sentenced to death, a sentence denying the defendant consideration of parole for 30 years, under O.C.G.A. § 42-9-39(c), did not constitute "cruel and unusual punishment." McClendon v. State, 256 Ga. 480, 350 S.E.2d 235 (1986).

Sentences not excessive.

- Where defendant pled guilty to two counts each of driving under the influence of alcohol (DUI) and driving with a suspended license, and one count each of driving without proof of insurance, improper lane usage, unlawful use of license, giving a false name, impeding traffic, and violation of a county open container ordinance, and was sentenced on the DUI counts to a 12-month consecutive term, a $1,000 fine, and a $25 assessment for costs of publishing defendant's photo and, on the remaining charges, to concurrent 12-month terms and a $200 fine for driving without proof of insurance, the sentence was not unconstitutionally excessive. McClure v. State, 218 Ga. App. 365, 460 S.E.2d 884 (1995).

Where the trial court sentenced defendant to consecutive 20-year sentences on two aggravated battery convictions, after defendant was convicted of breaking the victim's ribs and both orbital bones of the victim's eyes, the sentences were not cruel and unusual under the Eighth Amendment; the sentences were within the statutory limits under O.C.G.A. § 16-5-24(a), (b), and (h) and did not shock the conscience. Ware v. State, 259 Ga. App. 267, 576 S.E.2d 649 (2003).

An aggregate sentence of seven consecutive life sentences plus 265 years for multiple counts of armed robbery, kidnapping, and related crimes did not constitute cruel and unusual punishment, because the sentence for each offense was within statutory guidelines, and the trial court had the discretion to impose consecutive sentences for the separate offenses. Because the defendant failed to show that the punishment was so severe as to "shock the conscience," the presumption stood that the sentence did not constitute cruel and unusual punishment. Kollie v. State, 301 Ga. App. 534, 687 S.E.2d 869 (2009).

Permitting unlicensed person to drive.

- A sentence of six months in jail, six months on probation, and a fine of $1,000.00 for permitting an unlicensed person to drive a car did not constitute cruel and unusual punishment. Means v. State, 255 Ga. 537, 340 S.E.2d 612 (1986).

Penalty for dogfighting.

- A $5,000.00 fine and an optional one year in prison does not amount to cruel and unusual punishment for those convicted of dogfighting. Hargrove v. State, 253 Ga. 450, 321 S.E.2d 104 (1984).

Twenty-year maximum sentence imposed for aggravated sodomy did not shock the conscience, and therefore did not impose cruel and unusual punishment. Rodgers v. State, 261 Ga. 33, 401 S.E.2d 735 (1991).

Ten-year sentence for sodomy.

- Since the legislature has provided for a maximum sentence of confinement of 20 years, where the trial court sentenced defendant to ten years confinement followed by probation for repeated acts of sodomy committed against a minor, the sentence did not shock the conscience. Gordon v. State, 257 Ga. 439, 360 S.E.2d 253 (1987).

Defendant who was sentenced to ten years for sodomy could not complain of the maximum twenty-year sentence under the statute, as it is the sentence actually imposed, not a potentially greater sentence, which must be subjected to the constitutional scrutiny. Ray v. State, 259 Ga. 868, 389 S.E.2d 326 (1990), overruled on other grounds, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003).

Six month sentence for criminal trespass.

- A sentence of six months imprisonment and six months probation for trespass at a university was not cruel and unusual punishment where the defendant had a prior conviction for trespassing at the university and an ordinance violation for picketing at the university. McCrosky v. State, 234 Ga. App. 321, 506 S.E.2d 400 (1998).

Unnecessary and wanton infliction of pain.

- Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny. After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment. Alford v. Osei-Kawsi, 203 Ga. App. 716, 418 S.E.2d 79, cert. denied, 203 Ga. App. 905, 418 S.E.2d 79 (1992).

The question of whether a measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. Alford v. Osei-Kawsi, 203 Ga. App. 716, 418 S.E.2d 79, cert. denied, 203 Ga. App. 905, 418 S.E.2d 79 (1992).

Officer's actions of kneeing plaintiff in the groin violated contemporary standards of decency when the officer was faced with the plaintiff as a rebellious prisoner. In determining whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm, the court may consider the following factors: first, the extent of injury; second, the need for application of force; third, the relationship between the need for force and the amount of force used; fourth, the threat reasonably perceived by the officer; and, fifth, any efforts made to temper the severity of a forceful response. Although plaintiff's surgery could not be attributed solely to the officer's kneeing, neither could the surgery solely be attributed to a pre-existing condition; therefore, based on the preceding analysis the officer acted maliciously and sadistically in causing plaintiff harm. Culver ex rel. Bell v. Fowler, 862 F. Supp. 369 (M.D. Ga. 1994).

Prison guards and restoration of order.

- Guards may use force when necessary to restore order and need not wait until disturbances reach dangerous proportions before responding. Alford v. Osei-Kawsi, 203 Ga. App. 716, 418 S.E.2d 79, cert. denied, 203 Ga. App. 905, 418 S.E.2d 79 (1992).

In determining whether a guard used excessive force, three factors are considered: the need for the force, the relationship between the need and the amount of force used, and the extent of the injury inflicted. Alford v. Osei-Kawsi, 203 Ga. App. 716, 418 S.E.2d 79, cert. denied, 203 Ga. App. 905, 418 S.E.2d 79 (1992).

The use by the court of the Eleventh Circuit pattern jury instruction on excessive force in an action against prison guards was proper, notwithstanding the assertion by the defendants that the instructions failed to inform the jury that the defendants must have acted with specific intent, failed to instruct the jury on all of the factors essential to a determination of whether they had used force maliciously and sadistically for the very purpose of causing harm, and failed to inform the jury as to the deference given to prison officials in maintaining prison security and the presumption that they properly discharged their duties. Johnson v. Breeden, 280 F.3d 1308 (11th Cir. 2002).

Hurling prisoner down fire escape stairs unconstitutional.

- Correctional officer lacked good faith motivation in restoring discipline when the officer shoved a handcuffed, non-resisting inmate down a flight of metal stairs, entitling the inmate to prevail on an Eighth Amendment claim for cruel and unusual punishment and on the inmate's compensatory and punitive damages claim for permanent physical impairments. Davis v. Moss, 841 F. Supp. 1193 (M.D. Ga. 1994).

Use of force by prison officials did not violate an inmate's constitutional rights, where the need for the use of force was established by undisputed evidence that the inmate had created a disturbance, and the inmate's injuries were minimal. Bennett v. Parker, 898 F.2d 1530 (11th Cir. 1990), cert. denied, 498 U.S. 1103, 111 S. Ct. 1003, 112 L. Ed. 2d 1085 (1991).

Use of Taser gun.

- Where Taser was used on pregnant inmate, a § 1983 action was maintained, although there was no proof of serious physical injury. Alford v. Osei-Kawsi, 203 Ga. App. 716, 418 S.E.2d 79, cert. denied, 203 Ga. App. 905, 418 S.E.2d 79 (1992).

Sexual harassment.

- Prisoners are entitled to the protection of the Eighth Amendment from sexual harassment at the hands of prison staff. Battle v. Seago, 208 Ga. App. 516, 431 S.E.2d 148 (1993).

Certain constitutional rights follow a person into state prison through U.S. Const., amend. 14, and among these is the protection of U.S. Const., amend. 8 against cruel and unusual punishment. Wilson v. Kelley, 294 F. Supp. 1005 (N.D. Ga.), aff'd, 393 U.S. 266, 89 S. Ct. 477, 21 L. Ed. 2d 425 (1968).

Duty to protect prisoners.

- The state has a responsibility under U.S. Const., amend. 8 to protect the safety of its prisoners. Streeter v. Hopper, 618 F.2d 1178 (5th Cir. 1980); Yizar v. Ault, 265 Ga. 708, 462 S.E.2d 141 (1995).

Consecutive life sentences do not violate U.S. Const., amend. 8's ban on cruel and unusual punishment. Nelson v. State, 247 Ga. 172, 274 S.E.2d 317, cert. denied, 454 U.S. 882, 102 S. Ct. 365, 70 L. Ed. 2d 192 (1981).

Work and labor on the part of prisoners is not in itself unconstitutional or unlawful. Wilson v. Kelley, 294 F. Supp. 1005 (N.D. Ga.), aff'd, 393 U.S. 266, 89 S. Ct. 477, 21 L. Ed. 2d 425 (1968).

Hard labor as a penalty for crime is expressly permitted by U.S. Const., amend. 13, and not prohibited by U.S. Const., amend. 8. Wilson v. Kelley, 294 F. Supp. 1005 (N.D. Ga.), aff'd, 393 U.S. 266, 89 S. Ct. 477, 21 L. Ed. 2d 425 (1968).

Prison work assignments are considered conditions of confinement subject to scrutiny under the Eighth Amendment. Lee v. Sikes, 870 F. Supp. 1096 (S.D. Ga. 1994).

Prisoner who was attacked by a boar hog while working at the prisoner's assigned duties in a prison hog farm operation failed to show deliberate indifference on the part of prison officials and, even though the evidence showed that the officials were negligent in assigning the prisoner to the hog barn without proper training and equipment, such negligence was not enough to constitute a constitutional violation. Lee v. Sikes, 870 F. Supp. 1096 (S.D. Ga. 1994).

Provision of safety equipment for prisoners.

- County's failure to provide a prisoner with protective goggles and provide the prisoner with prompt medical care when the prisoner was injured while working on county equipment was not a violation of the cruel and unusual punishment clause. Webb v. Carroll County, 229 Ga. App. 584, 494 S.E.2d 196 (1997).

Conditions of confinement.

- In construing the cruel and unusual punishment clause of U.S. Const., amend. 8, the court must inquire whether conditions of confinement shock the conscience, are greatly disproportionate to the offense, or offend evolving notions of decency. United States v. Thevis, 526 F.2d 989 (5th Cir. 1976), cert. denied, 429 U.S. 928, 97 S. Ct. 335, 50 L. Ed. 2d 299 (1977).

Substandard sanitation and deficient medical care of inmates at a county jail was unconstitutional, and necessitated releasing some inmates to relieve overcrowding until construction of a new jail was completed. Fambro v. Fulton County, 713 F. Supp. 1426 (N.D. Ga. 1989).

Driving while intoxicated and theft by taking.

- A sentence of 10 years on a conviction for theft by taking and a consecutive sentence of 12 months for driving under the influence did not constitute cruel and unusual punishment where the defendant's actions caused significant personal injuries and property damage. Burgos v. State, 233 Ga. App. 897, 505 S.E.2d 543 (1998).

Long prison sentences.

- Imposition of sentence of life imprisonment for armed robbery under recidivist statute, is not cruel and unusual punishment. Chappell v. State, 164 Ga. App. 77, 296 S.E.2d 629 (1982).

Long prison sentences do not constitute cruel and unusual punishment where the sentences are within statutory limits. Fain v. State, 165 Ga. App. 188, 300 S.E.2d 197 (1983).

Conviction as "guilty but mentally ill" not unconstitutional.

- Simply because O.C.G.A. § 17-7-131 provides that the defendant convicted as "guilty but mentally ill" will be treated with funds to be appropriated, and there may exist a possibility that funds may run out or not be appropriated, there is no violation of constitutional guarantees against cruel and unusual punishment. Cooper v. State, 253 Ga. 736, 325 S.E.2d 137 (1985).

Imprisonment in certain jails may amount to cruel and unusual punishment in violation of U.S. Const., amend. 8. Stroman v. Griffin, 331 F. Supp. 226 (S.D. Ga. 1971).

Solitary confinement is not per se an unconstitutional form of punishment. It is permissible where its object is protection of the general prison population or the personnel, protection of the prisoner, for disobedience of orders or for prevention of the prisoner's escape. Krist v. Smith, 309 F. Supp. 497 (S.D. Ga. 1970), aff'd, 439 F.2d 146 (5th Cir. 1971).

Visitation rights.

- Utilizing the standards of "barbarous" and "shocking to the conscience" as a touchstone the denial to prisoners of conjugal visits cannot be characterized as cruel and unusual punishment. Polakoff v. Henderson, 370 F. Supp. 690 (N.D. Ga. 1973), aff'd, 488 F.2d 977 (5th Cir. 1974).

Although there is no constitutional right to visitation in and of itself, the visitation procedures can be the subject of equitable relief once it is found that the totality of the circumstances in a prison violate U.S. Const., amend. 8. Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Minimally adequate medical care.

- It is settled that federal and state governments have a constitutional obligation to provide adequate medical care to those whom they are punishing by incarceration. Barker v. Brantley County, 832 F. Supp. 346 (S.D. Ga. 1993), aff'd, 19 F.3d 37 (11th Cir. 1994).

The fact the county contracted with a local medical services provider to provide medical care at the detention center and that it relied on the provider to provide such care, did not amount to an intentionally corrupt or impermissible policy which would violate a citizen's rights under U.S. Const., amend. 8. Epps v. Gwinnett County, 231 Ga. App. 664, 499 S.E.2d 657 (1998).

Medical treatment for a prisoner is required when a physician or other health care provider, exercising ordinary skill and care at the time of observation, concludes with reasonable medical certainty: that the prisoner's symptoms evidence a serious disease or injury; that such disease or injury is curable or may be substantially alleviated; and that the potential for harm to the prisoner by reason of delay or the denial of care would be substantial. Brown v. Beck, 481 F. Supp. 723 (S.D. Ga. 1980).

Deliberate indifference standard as to medical care.

- For a plaintiff to prevail on a claim that inadequate medical attention rose to the level of an Eighth Amendment constitutional violation, the plaintiff must show that a defendant was "deliberately indifferent" to the plaintiff's serious medical needs and caused plaintiff unnecessary and wanton infliction of pain. Barker v. Brantley County, 832 F. Supp. 346 (S.D. Ga. 1993), aff'd, 19 F.3d 37 (11th Cir. 1994); Wright v. Thompson, 883 F. Supp. 724 (S.D. Ga. 1995).

Deliberate indifference to serious medical needs may be shown by proving a policy of deficiencies in staffing or procedures such that the inmate is effectively denied access to adequate medical care. Hill v. Dekalb Regional Youth Detention Ctr., 40 F.3d 1176 (11th Cir. 1994), overruled in part, Overruled in part, Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002).

Plaintiff failed to identify any injury or medical condition for which her husband was denied treatment or any incident in which her husband requested and was refused medical treatment; therefore, plaintiff failed to demonstrate deliberate indifference on the part of the detention center's medical director or the health care services provider to recover for an alleged violation of U.S. Const., amend. 8. Epps v. Gwinnett County, 231 Ga. App. 664, 499 S.E.2d 657 (1998).

Knowledge of a substantial risk of serious harm for the purpose of deliberate indifference means an awareness that the inmate needs medical care because of a serious risk of harm from illness or injury, as evidenced by the clinical signs and symptoms that are readily observable by a reasonable person; it does not require a final diagnosis, correct diagnosis, or a complete medical history when the inmate has not been allowed to see and to be examined by a physician or when medical care has been unreasonably delayed. Howard v. City of Columbus, 239 Ga. App. 399, 521 S.E.2d 51 (1999), cert. denied, 530 U.S. 1215, 120 S. Ct. 2218, 147 L. Ed. 2d 250 (2000).

Subjective deliberate indifference may be proven as a reasonable inference drawn from circumstantial evidence of the surrounding facts and circumstances. Howard v. City of Columbus, 239 Ga. App. 399, 521 S.E.2d 51 (1999), cert. denied, 530 U.S. 1215, 120 S. Ct. 2218, 147 L. Ed. 2d 250 (2000).

Omissions by a physician in the face of the physician's knowledge of plaintiff's vascular history and colleagues continually informing the physician that plaintiff's condition was unimproved and that the patient was in severe pain raised a jury issue as to whether or not the physician knowingly disregarded a serious medical risk and was deliberately indifferent to plaintiff's medical needs. Seals v. Shah, 145 F. Supp. 2d 1378 (N.D. Ga. May 4, 2001).

Prisoner's claims that medication was not administered properly and that the prisoner was subjected to harassment were not supported by evidence sufficient to show deliberate indifference. Herndon v. Whitworth, 924 F. Supp. 1171 (N.D. Ga. 1995).

Deliberate indifference negates official's qualified immunity.

- Sheriff's knowledge of the prisoner's need for medical care and the sheriff's intentional refusal to provide that care constituted "deliberate indifference," and the sheriff lost the sheriff's entitlement to qualified immunity to suit under § 1983 for violating the prisoner's fifth, eighth and fourteenth amendment rights. Harris v. Coweta County, 21 F.3d 388 (11th Cir. 1994).

State prison inmates's pro se complaint alleging a significant and uncomfortable health problem, repeated efforts to obtain treatment, and a total lack of treatment for the problem alleged enough to take this case arguably beyond an allegation of medical malpractice, and should not have been dismissed without conducting an inquiry although the complaint presented an arguable basis in law and contained unfanciful facts. Moreland v. Wharton, 899 F.2d 1168 (11th Cir. 1990).

Allegations of excessive and unnecessary medication administered after a prison inmate's objections to the treatment implicate Eighth Amendment concerns. Battle v. Central State Hosp., 898 F.2d 126 (11th Cir. 1990).

Courts must generally yield to the discretion of correction officials in the area of confinement, but the general adequacy of conditions of confinement of prisoners, such as medical treatment, hygienic materials, and physical facilities, is clearly subject to scrutiny under U.S. Const., amend. 8. Dorrough v. Hogan, 563 F.2d 1259 (5th Cir. 1977), cert. denied, 439 U.S. 850, 99 S. Ct. 153, 58 L. Ed. 2d 153 (1978).

Deliberate indifference to an inmate's severe and obvious injuries is tantamount to an intentional infliction of cruel and unusual punishment. Harris v. Chanclor, 537 F.2d 203 (5th Cir. 1976).

While deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain, a medical decision not to order an x-ray or like measures, does not represent cruel and unusual punishment. Brown v. Beck, 481 F. Supp. 723 (S.D. Ga. 1980).

Adequacy of medical treatment.

- The plaintiff in a civil rights action, a state prisoner, produced sufficient evidence from which it could be concluded that the county jail doctor acted recklessly in the performance of the doctor's professional duties, in that the doctor, while rendering some medical treatment to the plaintiff, who had aching and pain in the plaintiff's eyes and blurred vision, and who later went blind, allegedly failed to perform any diagnostic test or take eye secretion cultures, precluding summary judgment. Summary judgment was also inappropriate on behalf of the county sheriff, who allegedly never investigated overcrowding conditions in the jail and who decided not to meet certain minimal requirements of the American Medical Association. Weaver v. Jarvis, 611 F. Supp. 40 (N.D. Ga. 1985).

Inmate failed to show that the medical treatment the inmate received for an injured foot was so grossly incompetent, inadequate, or excessive as to shock the conscience, or to be intolerable to fundamental fairness, or that the medical care was so inappropriate as to evidence intentional maltreatment or refusal to provide essential care. Cantrell v. Thurman, 231 Ga. App. 510, 499 S.E.2d 416 (1998).

Prisoner's action for cruel and unusual punishment based on the prisoner's claim of lack of medical care was not established due to the lack of evidence regarding the culpable state of mind of the jailers and the actual causation of the prisoner's injury. Merritt v. Athens Clarke County, 233 Ga. App. 203, 504 S.E.2d 41 (1998).

Repeated denial, delay, insufficient, or inappropriate medical care of an obviously sick inmate in serious need of medical care constitutes circumstantial evidence of subjective, deliberate indifference. Howard v. City of Columbus, 239 Ga. App. 399, 521 S.E.2d 51 (1999), cert. denied, 530 U.S. 1215, 120 S. Ct. 2218, 147 L. Ed. 2d 250 (2000).

Temporary denial of a wheelchair did not constitute deliberate indifference to medical needs. Brown v. Thompson, 868 F. Supp. 326 (S.D. Ga. 1994).

Denial of food and medical attention are, prima facie, clearly established violations of the Eighth Amendment; however, they are not violations per se because the duration of the deprivations, the context in which they occur, and the intent of the prison officials implicated are all elements affecting a claim of deliberate indifference. Brown v. Thompson, 868 F. Supp. 326 (S.D. Ga. 1994).

Failure to provide medical care.

- Where an inmate failed to provide evidence that he had a "serious medical need," the court could not determine his claim of deliberate indifference by prison officials. Ruble v. King, 911 F. Supp. 1544 (N.D. Ga. 1995).

Deliberate indifference to serious psychological or psychiatric needs of an inmate results in the infliction of pain proscribed by the Eighth Amendment. Waldrop v. Evans, 681 F. Supp. 840 (M.D. Ga. 1988), aff'd, 871 F.2d 1030 (11th Cir. 1989).

Providing inmate with inadequate psychiatric care can violate the inmate's Eighth Amendment right not to be subjected to cruel and unusual punishment. Greason v. Kemp, 891 F.2d 829 (11th Cir. 1990).

Indifference to psychiatric needs of mentally ill prisoners.

- Evidence creating an inference that a pattern of deliberate indifference to the psychiatric needs of mentally ill prisoners existed at the jail, which city policymakers should have been aware of, established issues of material fact with respect to whether defendant suffered constitutional deprivations. Young v. City of Augusta ex rel. DeVaney, 59 F.3d 1160 (11th Cir. 1995).

Requiring prisoner to sleep on mattress on floor not violation of constitutional rights.

- Where a prisoner filed a civil complaint and amendment alleging that the prisoner was required to sleep on a mattress on the floor for a period of time and was thus deprived of the prisoner's constitutional rights under the Eighth Amendment, the trial court did not err in finding the practice not to be inhumane and in dismissing the complaint for failure to state a claim, where nothing in the complaint suggested that the prisoner was required to sleep on a floor mattress as a permanent method of placement while there was an empty and available bed which the prisoner was arbitrarily denied, nor that it resulted in torture or in pain without any penological purpose such as relief from overcrowded conditions or even as a penalty, or amounted to unquestioned and serious deprivation of the prisoner's basic human needs, that it in fact caused the prisoner any particular grievous and insupportable detriment. Hall v. Jones, 180 Ga. App. 454, 349 S.E.2d 469 (1986), cert. denied, 484 U.S. 831, 108 S. Ct. 105, 98 L. Ed. 2d 64 (1987).

Deliberate indifference to serious medical needs of prisoners violates the Eighth Amendment prohibition of cruel and unusual punishment. Rogers v. Evans, 792 F.2d 1052 (11th Cir. 1986); Thomas v. Evans, 880 F.2d 1235 (11th Cir. 1989), cert. denied, 498 U.S. 901, 111 S. Ct. 261, 112 L. Ed. 2d 218 (1990).

A prison inmate has the right under the Eighth Amendment to be free from deliberate indifference to serious physical or psychiatric needs. Waldrop v. Evans, 871 F.2d 1030 (11th Cir. 1989); Howard v. Jonah, 208 Ga. App. 542, 430 S.E.2d 833 (1993).

Delay in access to medical attention.

- To state an Eighth Amendment violation for inadequate medical care it must be shown that treatment was "so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness or where the medical care is so inappropriate as to evidence intentional maltreatment or a refusal to provide essential care." Alford v. Osei-Kawsi, 203 Ga. App. 716, 418 S.E.2d 79, cert. denied, 203 Ga. App. 905, 418 S.E.2d 79 (1992).

Delay in access to medical attention can violate the Eighth Amendment, when it is "tantamount to 'unnecessary and wanton infliction of pain.'" Hill v. Dekalb Regional Youth Detention Ctr., 40 F.3d 1176 (11th Cir. 1994); Overruled in part, Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002).

Delay or even denial of medical treatment for superficial, nonserious physical conditions does not constitute an Eighth Amendment violation. Hill v. Dekalb Regional Youth Detention Ctr., 40 F.3d 1176 (11th Cir. 1994), overruled in part, Overruled in part, Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002).

Evidence insufficient to support deliberate indifference claim.

- Plaintiff did not have evidence to establish the subjective mental prong of deliberate indifference necessary to allege mistreatment under U.S. Const., amend. 8 while incarcerated. Campbell v. Sikes, 169 F.3d 1353 (11th Cir. 1999).

Mistakes, negligence, and medical malpractice are not constitutional violations merely because the victim is a prisoner; also, differences in medical opinion do not amount to a constitutional violation. Wright v. Thompson, 883 F. Supp. 724 (S.D. Ga. 1995).

Jury question as to prisoner's medical needs.

- There was a jury question whether a prisoner, who had a history of head injuries and who asked to see a doctor about severe headaches and dizziness allegedly caused by an injury received during the prisoner's recent arrest, had a serious medical need and whether the doctor who responded to the prisoner's request, but refused to examine the prisoner, stating the doctor would "doctor [the prisoner's] records," showed deliberate indifference to the prisoner's needs. United States v. Roark, 753 F.2d 991 (11th Cir. 1985).

AIDS patients.

- Georgia Department of Corrections was not "deliberately indifferent" to the serious medical needs of prisoners who had tested positive to the AIDS virus, where its policy for treatment of such patients was similar to that of other reputable national and local agencies. Hawley v. Evans, 716 F. Supp. 601 (N.D. Ga. 1989).

Statement of claim for denial of medical care and treatment.

- To state a claim of constitutional magnitude for the denial of medical care and treatment, prisoners must show that prison officials were deliberately indifferent to their serious medical needs. Negligence, without deliberately indifferent or wanton conduct, is not cruel and unusual punishment. Hawley v. Evans, 716 F. Supp. 601 (N.D. Ga. 1989).

Fine for cocaine trafficking held constitutional.

- Where the defendant was convicted of trafficking cocaine in violation of O.C.G.A. § 16-13-31 and was sentenced to 20 years imprisonment and fined $100,000, the fine was not out of proportion to the severity of the crime and not constitutionally infirm either because of its mandatory nature or its amount. Wyatt v. State, 259 Ga. 208, 378 S.E.2d 690 (1989).

Forfeiture of property.

- Case involving the forfeiture of 5.1 acres of land and a dwelling house on the basis of the discovery of 8.8 ounces of marijuana would be remanded to the trial court for consideration in light of the decision in Thorp v. State, 264 Ga. 712, 450 S.E.2d 416 (1994). Evans v. State, 217 Ga. App. 646, 458 S.E.2d 859 (1995).

In analyzing a claim that forfeiture amounted to an excessive fine, the court should look at the gravity of the offense, as compared with the harshness of the penalty, whether the property seized was close enough to the offense to render it "guilty," and whether the criminal activity involving the property seized was extensive, in terms of time or space. Mitchell v. State, 236 Ga. App. 335, 511 S.E.2d 880 (1999).

Finding that a portion of real property was used to facilitate drug activities did not make the entire tract of land contraband and, thus, forfeiture of a residence and the 5.2 acres of land upon which it stood was excessive. Rabern v. State, 242 Ga. App. 804, 531 S.E.2d 373 (2000).

Federal drug sentencing statute.

- Anti-Drug Abuse Act's (21 U.S.C. § 841 et seq.) punishment for cocaine base offenses did not constitute cruel and unusual punishment within the meaning of U.S. Const., amend. 8 in light of evidence adducing distinguishing risks and dangers of this drug. United States v. Mosley, 808 F. Supp. 1572 (N.D. Ga. 1992).

A fine representing an amount less than the net profit of an illegal transaction does not violate the Eighth Amendment absent a showing of severe, particularized hardship suffered by defendant. United States v. Elkins, 885 F.2d 775 (11th Cir. 1989), cert. denied, 494 U.S. 1005, 110 S. Ct. 1300, 108 L. Ed. 2d 477 (1990).

What constitutes punishment of inmates.

- Punishment within the meaning of U.S. Const., amend. 8, is an action by prison guards or a condition of confinement that is applied to an inmate for a penal or disciplinary purpose and is at least apparently authorized or acquiesced in by high prison officials. George v. Evans, 633 F.2d 413 (5th Cir. 1980).

Where evidence does not show that action by guards is apparently authorized or acquiesced in by high prison officials for a penal or disciplinary purpose, there is no violation of the prisoner's rights under U.S. Const., amend. 8. George v. Evans, 633 F.2d 413 (5th Cir. 1980).

Due process protection against use of undue force by guard.

- Even though a violation of U.S. Const., amend. 8 may not be established, the use of undue force by a prison guard is actionable as a deprivation of due process rights under U.S. Const., amend. 14. George v. Evans, 633 F.2d 413 (5th Cir. 1980).

Emergency circumstances - i.e., large scale rioting - justified departing from terms of consent decree governing use of a jail. Wilson v. Attaway, 757 F.2d 1227 (11th Cir. 1985).

Where an officer beat an inmate who was handcuffed and shackled, the defense of qualified immunity could not be successfully asserted. Ruble v. King, 911 F. Supp. 1544 (N.D. Ga. 1995).

Where an officer failed to intervene when the officer was aware that another officer was using excessive force on an inmate, the defense of qualified immunity could not be successfully asserted. Ruble v. King, 911 F. Supp. 1544 (N.D. Ga. 1995).

Remedy for mistreatment of prisoner.

- Assuming arguendo that a prisoner's allegations of mistreatment demonstrate cruel and unusual punishment, the prisoner still would not be entitled to release from prison, the appropriate remedy being to enjoin continuance of any practices or require correction of any conditions causing the prisoner cruel and unusual punishment. Cook v. Hanberry, 596 F.2d 658 (5th Cir.), cert. denied, 442 U.S. 932, 99 S. Ct. 2866, 61 L. Ed. 2d 301 (1979).

Habeas corpus is not available to prisoners complaining only of mistreatment during their legal incarceration. The relief from such unconstitutional practices, if proved, is in the form of equitably imposed restraint, not freedom from otherwise lawful incarceration. Cook v. Hanberry, 592 F.2d 248 (5th Cir.), supplemented, 596 F.2d 658 (5th Cir.), cert. denied, 442 U.S. 932, 99 S. Ct. 2866, 61 L. Ed. 2d 301 (1979).

Although openly advocating insubordination in a prison is a serious matter, it does not call for several months or years of harsh confinement in a special disciplinary facility. Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Allowable conditions of probation.

- The court had the authority to impose as a condition of probation the requirement that defendant wear a fluorescent pink plastic bracelet imprinted with the words "D.U.I. CONVICT." Such a requirement did not impose cruel and unusual punishment or deprive defendant of equal protection and it was not an impermissibly indeterminate condition. Ballenger v. State, 210 Ga. App. 627, 436 S.E.2d 793 (1993).

Disenfranchisement of persons convicted of certain crimes.

- Although Ga. Const. 1945, Art. II, Sec. II, Para. I (see Ga. Const. 1983, Art. II, Sec. I, Para. III and Art. II, Sec. II, Para. III) serves to abridge the plaintiff's right to vote, disenfranchisement is a nonpenal exercise of a state's power to regulate the vote and is not cruel and unusual punishment. Kronlund v. Honstein, 327 F. Supp. 71 (N.D. Ga. 1971).

Possession of marijuana.

- Code 1933, Ch. 79A-9, prior to Ga. L. 1974, p. 221 (See O.C.G.A. Art. 2, Ch. 13, T. 16), concerning the possession of marijuana is not subject to constitutional attack under U.S. Const., amend. 8. Blincoe v. State, 231 Ga. 886, 204 S.E.2d 597 (1974).

Punishment for driving after license revoked.

- A mandatory one to five-year sentence for driving a motor vehicle after one's license has been revoked under O.C.G.A. § 40-5-58 is neither barbaric nor excessive under U.S. Const., amend. 8. Cox v. State, 241 Ga. 154, 244 S.E.2d 1 (1978).

Refusal of statute to sell liquor tax stamps or grant liquor license.

- A statute which makes it unlawful to possess or sell liquor without obtaining a license and without paying any tax imposed upon such liquor, where the defendant cannot purchase a license or pay the tax because the state refuses to sell such license or revenue stamps, does not violate U.S. Const., amend. 8 or U.S. Const., amend. 14. Akins v. State, 224 Ga. 650, 164 S.E.2d 125 (1968).

Review.

- Where the appellate court did not find the defendant's sentences unconstitutionally excessive, this did not affect the defendant's right to take the defendant's contention to the sentence review board as provided under former O.C.G.A. § 17-10-6. Reid v. State, 235 Ga. App. 887, 510 S.E.2d 851 (1999).

Military jurisdiction to be narrowly construed.

- Although trial by a military tribunal deprives one of trial by jury and other constitutional rights, it is not unconstitutional. However, military jurisdiction is restricted to the narrowest limits consistent with the power granted Congress in U.S. Const., art. I, sec. VIII, cl. 14. Torres v. Connor, 329 F. Supp. 1025 (N.D. Ga. 1970).

Right to wear one's hair as one sees fit has not been found to be within the periphery of any of our specific constitutional rights. Ashley v. City of Macon, 377 F. Supp. 540 (M.D. Ga. 1974), aff'd, 505 F.2d 868 (5th Cir. 1975).

There is no constitutionally protected right, plainly expressed or within the penumbra, the shadow, of U.S. Const., amend. 1, 8, 9, 10, and 14, to wear one's hair in a public high school in the length and style that suits the wearer. Ashley v. City of Macon, 377 F. Supp. 540 (M.D. Ga. 1974), aff'd, 505 F.2d 868 (5th Cir. 1975).

Forfeiture for drug possession excessive.

- Forfeiture of 5.1 acres of land, including a house, based on the recovery of a few immature marijuana plants growing on a small portion of the property was excessive under U.S. Const., amend. 8 and mitigation of the forfeiture was not practicable. State v. Evans, 225 Ga. App. 402, 484 S.E.2d 70 (1997).

Civil in rem forfeitures.

- The constitutional prohibition against excessive fines applies to civil in rem forfeitures. Thorp v. State, 264 Ga. 712, 450 S.E.2d 416 (1994).

Factors for evaluating whether a civil in rem forfeiture is excessive are: (1) consideration of the inherent gravity of the offense compared with the harshness of the penalty; (2) whether the property was close enough to the offense to render it "guilty"; and (3) whether the criminal activity involving the property was extensive in terms of time and/or spatial use. Thorp v. State, 264 Ga. 712, 450 S.E.2d 416 (1994).

Trial court did not err in issuing interlocutory injunctions and continuing receiverships over store property seized pursuant to O.C.G.A. § 16-14-7 based on alleged video gambling activity in violation of O.C.G.A. § 16-12-22 and racketeering activity under O.C.G.A. § 16-14-3(8) and (9). Remand was required, however, for consideration of whether the forfeitures were excessive fines in violation of U.S. Const., amend. VIII. Patel v. State, 289 Ga. 479, 713 S.E.2d 381 (2011).

Forfeiture of medical license under federal law.

- Forfeiture of the defendant's medical license under 21 U.S.C. § 853 did not constitute an excessive fine in violation of U.S. Const., amend. 8. United States v. Dicter, 198 F.3d 1284 (11th Cir. 1999), cert. denied, 531 U.S. 828, 121 S. Ct. 77, 148 L. Ed. 2d 40 (2000).

Requiring DNA sample from incarcerated convicted felons not punishment.

- Former O.C.G.A. § 24-4-60 (see now O.C.G.A. § 35-3-160) did not violate the Eighth Amendment because the statute, requiring all convicted felons incarcerated in a state correctional facility to provide a sample for DNA analysis to determine the identification characteristics specific to the person, does not impose any form of punishment. Further, the purpose of establishing a DNA databank had been identified, and the methods for obtaining data provided by the statute were not excessive measures in response to the purpose, therefore, without any showing of the use of excessive force that might arguably state a claim of cruel and unusual punishment in obtaining DNA samples through involuntary means, the statute was deemed not penal and the means used to enforce the statute have not been shown to be malicious or grossly disproportionate to the refusal to comply with the statutory mandate. Quarterman v. State, 282 Ga. 383, 651 S.E.2d 32 (2007).

Incomplete brain maturation not relevant to sentence.

- Defendant failed to show that trial counsel was ineffective by failing to assert that the state's statutory and constitutional provisions requiring the service of mandatory minimum sentences before consideration for parole regardless of age constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution because any consideration for Eighth Amendment purposes of incomplete brain maturation due solely to age was inappropriate since the defendant was 20 years old at the time the defendant committed the crime and was sentenced to a term of years rather than death. Gandy v. State, 290 Ga. 166, 718 S.E.2d 287 (2011).

Constitutionality of death penalty.

- The punishment of death does not invariably violate the Constitution. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).

Death penalty is not invariably cruel and unusual punishment within the meaning of U.S. Const., amend. 8. It is not inherently barbaric or an unacceptable mode of punishment for crime; neither is it always disproportionate to the crime for which it is imposed. Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977).

Lethal injection not cruel and unusual.

- Death by lethal injection is not unconstitutional under U.S. Const., amend. 8 and Ga. Const. 1983, Art. I, Sec. I, Para. XVII, both of which prohibit cruel and unusual punishment. Lewis v. State, 279 Ga. 756, 620 S.E.2d 778 (2005), cert. denied, 547 U.S. 1116, 126 S. Ct. 1917, 164 L. Ed. 2d 671 (2006).

Trial court did not err in rejecting a defendant's claim that lethal injection was unconstitutional as the defendant proffered no evidence to sustain the claim. Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50 (2007).

Defendant's pre-trial motion regarding lethal injection and the defendant's amended motion for a new trial addressing lethal injection were properly denied as the defendant failed to identify any particular aspect of the evidence admitted in the trial court that would require a departure from the prior decisions holding that lethal injection was a constitutional form of execution. Williams v. State, 281 Ga. 87, 635 S.E.2d 146 (2006), cert. denied, 553 U.S. 1004, 128 S. Ct. 2046, 170 L. Ed. 2d 793 (2008).

This state's death penalty statute is not subject to attack under U.S. Const., amend. 8. Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974).

Power of state courts as to capital sentencing standards.

- As long as a state's capital sentencing procedures meet constitutional requirements, the state's courts are free to adopt additional standards governing its capital sentencing procedures. Goodwin v. Balkcom, 501 F. Supp. 317 (M.D. Ga. 1980), rev'd on other grounds, 684 F.2d 794 (11th Cir. 1982), cert. denied, 460 U.S. 1098, 103 S. Ct. 1798, 76 L. Ed. 2d 364 (1983).

State's duty as to death penalty generally.

- If a state wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a state's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates standardless sentencing discretion. Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980).

System of capital punishment that does not clearly define standards to guide the exercise of sentencing discretion is constitutionally intolerable. United States v. Kaiser, 545 F.2d 467 (5th Cir. 1977).

Death sentencing procedures posing risk of arbitrary and capricious imposition.

- The death sentence cannot be imposed under sentencing procedures that create a substantial risk that it will be inflicted in an arbitrary and capricious manner. Goodwin v. Balkcom, 501 F. Supp. 317 (M.D. Ga. 1980), rev'd on other grounds, 684 F.2d 794 (11th Cir. 1982), cert. denied, 460 U.S. 1098, 103 S. Ct. 1798, 76 L. Ed. 2d 364 (1983), cert. denied, 460 U.S. 1098, 103 S. Ct. 1798, 76 L. Ed. 2d 364 (1983).

Electrocution is not cruel and unusual.

- The manner of execution in this state is not unconstitutional and death by electrocution is not repugnant to U.S. Const., amend. 8. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).

The method of execution in this state, electrocution, does not constitute cruel and unusual punishment. Nelson v. State, 247 Ga. 172, 274 S.E.2d 317, cert. denied, 454 U.S. 882, 102 S. Ct. 365, 70 L. Ed. 2d 192 (1981); Dix v. Newsome, 584 F. Supp. 1052 (N.D. Ga. 1984).

Electrocution does not inflict unnecessary torture and torment constituting cruel and unusual punishment in violation of U.S. Const., amend. 8 and U.S. Const., amend. 14. McCorquodale v. Balkcom, 525 F. Supp. 408 (N.D. Ga. 1981), aff'd in part, rev'd in part, 705 F.2d 1553 (11th Cir. 1983), cert. denied, 466 U.S. 954, 104 S. Ct. 2161, 80 L. Ed. 2d 546 (1984); Felker v. Turpin, 101 F.3d 95 (11th Cir. 1996)McCorquodale v. Balkcom. See; Felker v. Turpin, 101 F.3d 95 (11th Cir. 1996).

The method of execution in Georgia, electrocution, is not unconstitutional. Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806 (1983), cert. denied, 466 U.S. 945, 104 S. Ct. 1930, 80 L. Ed. 2d 475 (1984), cert. dismissed, 487 U.S. 1264, 109 S. Ct. 27, 101 L. Ed. 2d 977 (1988).

Electrocution does not constitute cruel and unusual punishment in violation of the Eighth Amendment. Sears v. State, 270 Ga. 834, 514 S.E.2d 426 (1999).

Mitigating factors must be considered in capital cases.

- U.S. Const., amend. 8 and U.S. Const., amend. 14 require that the sentencing judge or jury must be allowed to consider, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir. 1978); Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002); Franklin v. State, 245 Ga. 141, 263 S.E.2d 666, cert. denied, 447 U.S. 930, 100 S. Ct. 3029, 65 L. Ed. 2d 1124 (1980); Goodwin v. Balkcom, 501 F. Supp. 317 (M.D. Ga. 1980), rev'd on other grounds, 684 F.2d 794 (11th Cir. 1982), cert. denied, 460 U.S. 1098, 103 S. Ct. 1798, 76 L. Ed. 2d 364 (1983); Cofield v. State, 247 Ga. 98, 274 S.E.2d 530 (1981).

Mitigating factors must be considered in all but the rarest kind of capital case. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002); Franklin v. State, 245 Ga. 141, 263 S.E.2d 666, cert. denied, 447 U.S. 930, 100 S. Ct. 3029, 65 L. Ed. 2d 1124 (1980); Cofield v. State, 247 Ga. 98, 274 S.E.2d 530 (1981).

Statute providing for death penalty must allow sentencing body discretion to weigh all aspects of defendant's character and record as well as circumstances of the offense. Green v. State, 246 Ga. 598, 272 S.E.2d 475 (1980), cert. denied, 450 U.S. 936, 101 S. Ct. 1402, 67 L. Ed. 2d 372 (1981).

Implied unanimity requirement on mitigating circumstances.

- Court's requiring of a written finding on mitigating circumstances, signed by the foreman, implicitly imposed an improper unanimity requirement on mitigating circumstances in violation of U.S. Const., amend. 8. Brantley v. State, 262 Ga. 786, 427 S.E.2d 758 (1993), cert. denied, 522 U.S. 985, 118 S. Ct. 449, 139 L. Ed. 2d 384 (1997).

Mitigating evidence otherwise inadmissible under evidentiary rules.

- The Constitution requires that evidence which would be inadmissible under an evidentiary rule must not automatically be excluded if tendered in a capital case in mitigation of punishment, rather, the potentially mitigating influence of the testimony must be weighed against the harm resulting from the violation of the evidentiary rule, and in close cases the doubt should be resolved in favor of admissibility. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).

Imposition of the death penalty on circumstantial evidence alone is not unconstitutional. Nelson v. State, 247 Ga. 172, 274 S.E.2d 317, cert. denied, 454 U.S. 882, 102 S. Ct. 365, 70 L. Ed. 2d 192 (1981).

Effect of Interstate Agreement on Detainers on capital punishment.

- A state need not reduce a capital sentence which is authorized under its own laws merely because of the effects of another state's judicial processes, brought about by the operation of the Interstate Agreement on Detainers (see O.C.G.A. T. 42, Ch. 6, Art. 2). Cobb v. State, 244 Ga. 344, 260 S.E.2d 60 (1979).

Death penalty for capital offenses.

- Evidence was sufficient to show defendant was an active participant in capital offenses so that imposition of a death penalty was not unconstitutional under Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982), which rejected the imposition of a death penalty that was based on a conviction for felony-murder. Stanley v. Zant, 697 F.2d 955 (11th Cir. 1983), cert. denied, 467 U.S. 1219, 104 S. Ct. 2667, 81 L. Ed. 2d 372 (1984).

Death penalty may not be imposed for rape, armed robbery, or kidnapping where victim is not killed. Collins v. State, 239 Ga. 400, 236 S.E.2d 759 (1977).

Rape.

- A sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by U.S. Const., amend. 8 as cruel and unusual punishment. Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977).

Felony murder.

- The imposition of the death penalty on proof of a felony murder does not lead to the freakish and wanton executions because procedural safeguards have been enacted in order to prevent such abuses and have been held to be constitutionally adequate in that regard. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).

Because the defendant did not aid and abet a felony but the defendant committed murder, the death sentence for felony murder did not violate the Eighth Amendment. Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468, cert. denied, 484 U.S. 872, 108 S. Ct. 203, 98 L. Ed. 2d 154 (1987), 511 U.S. 1046, 114 S. Ct. 1577, 128 L. Ed. 2d 220 (1994).

Murder.

- A sentence to death by electrocution for murder is not cruel and unusual punishment under U.S. Const., amend. 8. Trimble v. State, 220 Ga. 229, 138 S.E.2d 274 (1964).

The death penalty for the crime of murder is not cruel and unusual punishment. Whisman v. State, 221 Ga. 460, 145 S.E.2d 499 (1965), cert. denied, 384 U.S. 895, 86 S. Ct. 1977, 16 L. Ed. 2d 1001 (1966).

Infliction of death as punishment of murder is not without justification and thus is not unconstitutionally severe. Williams v. Kemp, 846 F.2d 1276 (11th Cir. 1988), cert. dismissed, 489 U.S. 1094, 109 S. Ct. 1579, 103 L. Ed. 2d 931 (1989), cert. denied, 494 U.S. 1090, 110 S. Ct. 1836, 108 L. Ed. 2d 965 (1990).

Standing to challenge death penalty and striking of death-scrupled jurors.

- If the defendant is not sentenced to death the defendant has no standing to challenge the constitutionality of the death penalty or the striking of jurors unequivocally opposed to it. Lindsey v. State, 234 Ga. 874, 218 S.E.2d 585 (1975).

Failure to specify whether "murder" verdict was for malice murder or felony murder, thus leaving it unclear on face of verdict whether or not defendant was found to be a mere aider and abettor in the underlying felony and thus not susceptible to the death penalty, did not render death penalty erroneous where the evidence clearly indicated defendant's planning of and direct participation in the murder. Stevens v. Kemp, 254 Ga. 228, 327 S.E.2d 185 (1985), cert. denied, 475 U.S. 1031, 106 S. Ct. 1237, 89 L. Ed. 2d 346 (1986).

Capital sentencing instructions which do not clearly guide a jury in its understanding of mitigating circumstances and their purpose, and of the option to recommend a life sentence although aggravating circumstances are found, violate the Eighth Amendment. Goodwin v. Balkcom, 684 F.2d 794 (11th Cir. 1982), cert. denied, 460 U.S. 1098, 103 S. Ct. 1798, 76 L. Ed. 2d 364 (1983).

Prosecutors' discretion.

- Defendant's claim that the prosecutor's authority to choose in which cases to seek the death penalty permitted the possibility of an arbitrary and capricious abuse of discretion and was unconstitutional was rejected as prosecutors did not have unfettered discretion to seek the death penalty, and challenges to the Georgia legislature's determination that district attorneys should have the discretion to decide whether a murder defendant met the statutory criteria for the death penalty and whether to pursue the death penalty when a defendant was eligible had been repeatedly rejected. Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50 (2007).

Express jury finding that defendant killed, or intended to kill, not required.

- There is no constitutional requirement that the jury be instructed on, or make an express finding concerning, the requirement that, in order for the defendant to be given the death penalty, the defendant must have killed, attempted to kill, or intended to kill in order for the death penalty to be imposed. However, while this determination may be made by state trial or appellate court judges, instructing the jury thereon is the better practice. Cargill v. State, 255 Ga. 616, 340 S.E.2d 891 (1986), cert. denied, 479 U.S. 1101, 107 S. Ct. 1328, 94 L. Ed. 2d 180 (1987); overruled on other grounds, Manzano v. State, 282 Ga. 557, 651 S.E.2d 661 (2007).

No merit to enumeration of error that death penalty is unconstitutional.

- There is no merit in an enumeration of error contending that the death penalty is cruel and unusual punishment and is thus proscribed by both the United States and the Georgia Constitutions. Gilreath v. State, 247 Ga. 814, 279 S.E.2d 650 (1981), cert. denied, 456 U.S. 984, 102 S. Ct. 2258, 72 L. Ed. 2d 862 (1982).

Georgia death penalty scheme is constitutional. Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

U.S. Const., amend. 8 prohibits states from inflicting the death penalty upon a prisoner who is insane; however, consideration of the defendant's present sanity was premature because the defendant's execution was not imminent. Hance v. Kemp, 258 Ga. 649, 373 S.E.2d 184 (1988), cert. denied, 490 U.S. 1012, 109 S. Ct. 1658, 104 L. Ed. 2d 172 (1989).

Racial considerations in capital sentencing.

- A complex statistical study that indicated a risk that racial considerations enter into capital sentencing determinations did not prove that a particular defendant's capital sentence was unconstitutional under the Eighth Amendment or the equal protection clause of the fourteenth amendment. McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987).

Statistical evidence as to discrimination in imposition of death penalty.

- Where the defendant proffered statistical evidence that the death penalty statute was applied in an arbitrary and racially discriminatory manner and with inadequate appellate review, the district court was not required to hold an evidentiary hearing in the absence of the proffer demonstrating a reasonable possibility that the evidence might compel an inference of purposeful discrimination. Ross v. Kemp, 756 F.2d 1483 (11th Cir. 1985).

A statistical study, while showing a race-of-the-victim relationship with the imposition of the death sentence discernible in enough cases to be statistically significant in the system as a whole, did not support a ruling that the system as a whole was arbitrary and capricious, and was insufficient to show that the defendant's death sentence was determined by the race of his victim, or even that the race of his victim contributed to the imposition of the penalty. McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985), aff'd, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987).

Death penalty is not per se cruel and unusual in violation of U.S. Const., amend. 8. McCleskey v. Zant, 580 F. Supp. 338 (N.D. Ga. 1984), rev'd on other grounds sub nom. McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985), aff'd, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), cert. denied, 501 U.S. 1282, 112 S. Ct. 38, 115 L. Ed. 2d 1118 (1991).

Imposition of death penalty upon minor.

- The imposition of the death penalty was not cruel and unusual punishment per se simply because defendant was a minor at the time of the offense. High v. Zant, 250 Ga. 693, 300 S.E.2d 654 (1983), cert. denied, 467 U.S. 1220, 104 S. Ct. 2669, 81 L. Ed. 2d 374 (1984); Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), (eighth amendment forbids imposition of death penalty on juvenile offenders under age 18).

The Constitution does not prohibit a state from imposing the death penalty on one who, while 17 years old, has intentionally and viciously taken a life in cold blood. High v. Kemp, 819 F.2d 988 (11th Cir. 1987), cert. denied, 492 U.S. 926, 109 S. Ct. 3264, 106 L. Ed. 2d 609 (1989); Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), (eighth amendment forbids imposition of death penalty on juvenile offenders under age 18).

Imposition of death penalty on codefendant.

- U.S. Const., amend. 8 does not authorize imposition of the death penalty upon a person who has participated in a robbery that results in a killing, if such person is not the person who does the killing, attempts to kill, or intends that the killing take place or that lethal force will be employed. Jones v. Francis, 252 Ga. 60, 312 S.E.2d 300, cert. denied, 469 U.S. 873, 105 S. Ct. 228, 83 L. Ed. 2d 157 (1984).

Where the defendant was not only present at the scene of the murder and participated in the assault and rape of two children, but also assisted the codefendant in stripping the children and binding their hands, then turned the defendant's car around in the road, presumably to facilitate a quick getaway and stood by the codefendant in the road while the latter shot the victims, the jury reasonably found that the defendant was an active party in the murder, and the death sentence was not disproportionate to the crime. Johnson v. Kemp, 585 F. Supp. 1496 (S.D. Ga. 1984), modified on other grounds, 759 F.2d 1503 (11th Cir. 1985).

Although the defendant, while not the prime mover in the murder, had a valid death penalty pending against the defendant, while the defendant's coperpetrator, arguably the triggerman in the crime, did not currently have a death sentence, the defendant's sentence was not ipso facto disproportionate, in violation of U.S. Const., amend. 8, as the focus of a capital sentencing procedure should be on the culpability of the individual defendant. Johnson v. Kemp, 585 F. Supp. 1496 (S.D. Ga. 1984), modified on other grounds, 759 F.2d 1503 (11th Cir. 1985).

Jurors not automatically against capital punishment cannot be systematically excluded.

- A jury is improperly selected where persons who do not make it unmistakably clear that they will automatically vote against capital punishment are systematically excluded from the jury, in violation of the sixth, eighth and fourteenth amendments. Potts v. Zant, 575 F. Supp. 374 (N.D. Ga. 1983), aff'd, 734 F.2d 526 (11th Cir. 1984), cert. denied, 475 U.S. 1068, 106 S. Ct. 1386, 89 L. Ed. 2d 610, judgment vacated, 478 U.S. 1017, 106 S. Ct. 3328, 92 L. Ed. 2d 734 (1986), (remanded for further consideration in light of Rose v. Clark, 478 U.S. 570 (1986)), aff'd, 814 F.2d 1512 (11th Cir. 1987), cert. denied, 493 U.S. 876, 110 S. Ct. 214, 107 L. Ed. 2d 166 (1989).

Belief by jurors that death sentence will be carried out.

- Capital defendants possess no Eighth Amendment right to a jury that imposes a death sentence believing that a sentence of death will result in the defendant's execution. Ingram v. Zant, 26 F.3d 1047 (11th Cir. 1994), cert. denied, 513 U.S. 1167 , 115 S. Ct. 1137, 130 L. Ed. 2d 1097 (1995).

Each statutory aggravating circumstance under the death penalty statute must satisfy a constitutional standard derived from the principles of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), itself, for a system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman, supra could occur. Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

An aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

As long as one valid statutory aggravating circumstance exists in a death penalty case, a federal habeas court should not grant relief unless the evidence or factor in question was constitutionally inappropriate. Collins v. Francis, 728 F.2d 1322 (11th Cir.), cert. denied, 469 U.S. 963, 105 S. Ct. 361, 83 L. Ed. 2d 297 (1984).

Prosecutor's recital to jury from United States Supreme Court and Georgia Supreme Court cases during the penalty phase of a case, with the purpose of influencing the jury to impose the death penalty, violates right to a rational sentencing hearing and right to due process of law as guaranteed by the eighth and fourteenth amendments. Potts v. Zant, 575 F. Supp. 374 (N.D. Ga. 1983), aff'd, 734 F.2d 526 (11th Cir. 1984), cert. denied, 475 U.S. 1068, 106 S. Ct. 1386, 89 L. Ed. 2d 610, judgment vacated, 478 U.S. 1017, 106 S. Ct. 3328, 92 L. Ed. 2d 734 (1986), (remanded for further consideration in light of Rose v. Clark, 478 U.S. 570 (1986)), aff'd, 814 F.2d 1512 (11th Cir. 1987), cert. denied, 493 U.S. 876, 110 S. Ct. 214, 107 L. Ed. 2d 166 (1989), aff'd, 734 F.2d 526 (11th Cir. 1984), cert. denied, 475 U.S. 1068, 106 S. Ct. 1386, 89 L. Ed. 2d 610, cert. granted, 478 U.S. 1017, 106 S. Ct. 3328, 92 L. Ed. 2d 734 (1986), aff'd, 814 F.2d 1512 (11th Cir. 1987), cert. denied, 493 U.S. 876, 110 S. Ct. 214, 107 L. Ed. 2d 166 (1989).

Prosecutor's argument during sentencing phase of capital murder trial improper, but not prejudicial.

- Although arguments made by the prosecutor in the sentencing phase of a capital murder trial were improper - the discussion of the prosecutor's policy of infrequently seeking the death penalty (the "prosecutorial expertise" argument) and the use of personal opinions in discussing the defendant's chance for rehabilitation, they did not have a severely prejudicial impact, given that they were mitigated in substantial measure by the more pervasive thrust of the sentencing hearing. Tucker v. Kemp, 762 F.2d 1480 (11th Cir. 1985), judgment vacated, 474 U.S. 1001, 106 S. Ct. 517, 88 L. Ed. 2d 452 (1985) for further consideration in light of Caldwell v. Mississippi, 472 U.S. 320 (1985), aff'd, 802 F.2d 1293 (11th Cir. 1986), cert. denied, 480 U.S. 911, 107 S. Ct. 1359, 94 L. Ed. 2d 529 (1987).

Fundamentally unfair to suggest impropriety of mercy.

- In the sentencing phase of a capital murder prosecution, in which the state's case against the defendant was made almost completely by the codefendant, the prosecutor's extremely improper use of century-old Georgia Supreme Court cases to suggest the impropriety of mercy rendered the sentencing proceeding fundamentally unfair. Drake v. Kemp, 762 F.2d 1449 (11th Cir. 1985), cert. denied, 478 U.S. 1020, 106 S. Ct. 3333, 92 L. Ed. 2d 738 (1986).

Jury's function as primary sentencer in capital cases.

- Although the prosecutor made statements regarding the "important responsibility" of the appellate court, which allegedly encouraged the jury to abandon its crucial function as primary sentencer, the trial court instructed the jury to disregard the prosecutor's statement and advised the jury that the statement was "highly improper" and that the case ended with the jury's decision. This admonishment was sufficient to correct any improper impression that the prosecutor may have sought to impart. McCorquodale v. Kemp, 829 F.2d 1035 (11th Cir.), cert. denied, 483 U.S. 1055, 108 S. Ct. 32, 97 L. Ed. 2d 819 (1987).

Permissible instructions concerning aggravating circumstances.

- The trial judge may instruct the jury that if it finds one or more statutory aggravating circumstances it may also consider any other mitigating or aggravating circumstances in determining whether or not the death penalty should be imposed, provided that the evidence bears on the defendant's prior record, or circumstances of the defendant's offense. McCleskey v. Zant, 580 F. Supp. 338 (N.D. Ga. 1984), rev'd on other grounds sub nom. McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985), aff'd, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), cert. denied, 501 U.S. 1282, 112 S. Ct. 38, 115 L. Ed. 2d 1118 (1991).

Capital sentencing instructions which do not clearly guide a jury in its understanding of mitigating circumstances and their purpose violate this and the fourteenth amendments. Finney v. Zant, 709 F.2d 643 (11th Cir. 1983), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 90 L. Ed. 2d 371 (1986).

Under Georgia's death sentencing scheme, the eighth and fourteenth amendments require that the trial judge clearly and explicitly instruct the jury about mitigating circumstances and the option to recommend against death. Where the instruction, taken as a whole, at best was contradictory and confusing as to the jury's function if it determined that an aggravating circumstance was present, as the jury was told that upon finding an aggravating circumstance its verdict would be death, but it was possible to lift isolated phrases from the jury instruction and find in those phrases an indication that a death sentence need not have inexorably flowed from a finding of an aggravated circumstance, on the whole, the instruction fell far short of providing clear and explicit information to the jury that it had the option not to recommend a sentence of death and defendant's death sentence was therefore set aside. Moore v. Kemp, 809 F.2d 702 (11th Cir.), cert. denied, 481 U.S. 1054, 107 S. Ct. 2192, 95 L. Ed. 2d 847 (1987), aff'd, 972 F.2d 319 (11th Cir. 1992).

Instruction in death penalty proceeding must explain life sentence alternative.

- It is error to provide a sentencing phase instruction in a death penalty case, which fails to explain that a life sentence may be recommended even in the presence of statutory aggravating circumstances. Stynchcombe v. Floyd, 252 Ga. 113, 311 S.E.2d 828 (1984).

Jury must be given standards to guide and limit its discretion whether to recommend life imprisonment or death. Goodwin v. Balkcom, 501 F. Supp. 317 (M.D. Ga. 1980), rev'd on other grounds, 684 F.2d 794 (11th Cir. 1982), cert. denied, 460 U.S. 1098, 103 S. Ct. 1798, 76 L. Ed. 2d 364 (1983).

Because one of the aggravating circumstances used to support a death sentence was invalidated by the Georgia Supreme Court, its failure to reverse the death sentence based on that invalid aggravating circumstance deprived the defendant of the defendant's rights under the eighth and fourteenth amendments. Potts v. Zant, 575 F. Supp. 374 (N.D. Ga. 1983), aff'd, 734 F.2d 526 (11th Cir. 1984), cert. denied, 475 U.S. 1068, 106 S. Ct. 1386, 89 L. Ed. 2d 610, judgment vacated, 478 U.S. 1017, 106 S. Ct. 3328, 92 L. Ed. 2d 734 (1986), (remanded for further consideration in light of Rose v. Clark, 478 U.S. 570 (1986)), aff'd, 814 F.2d 1512 (11th Cir. 1987), cert. denied, 493 U.S. 876, 110 S. Ct. 214, 107 L. Ed. 2d 166 (1989).

"Unfettered discretion" of clemency constitutional.

- The presence of "unfettered discretion" in the clemency process does not render the imposition of the death penalty of the defendant arbitrary and capricious in violation of the Eighth Amendment. The discretion involved at the clemency stage can never cause the imposition of the death sentence; it serves only as an act of grace to relieve that sentence even when the sentence has been legally imposed. Smith v. Snow, 722 F.2d 630 (11th Cir. 1983).

Effect of jury finding of malice murder on court's review of death sentence.

- A jury's decision finding the defendant guilty of malice murder foreclosed the court from considering the argument that the imposition of the death penalty was unconstitutional because the defendant aided and abetted a felony but did not kill, attempt to kill, or intend that a killing take place. Green v. Zant, 738 F.2d 1529 (11th Cir.), cert. denied, 469 U.S. 1098, 105 S. Ct. 607, 83 L. Ed. 2d 716 (1984).

Scope of federal habeas corpus review of death sentences.

- If a federal habeas court concludes that the Georgia Supreme Court's determination following its "proportionality" review of a death sentence under O.C.G.A. § 17-10-35 "shocks the conscience," it is required to remand the case to allow the state court to resentence the petitioner. A federal habeas court may not conduct a de novo proportionality review and thereby inject itself into the state sentencing procedure. Its review remains confined to whether the state sentencing procedure both on its face and as applied violates the eighth and fourteenth amendments. Moore v. Balkcom, 716 F.2d 1511 (11th Cir.), modified on other grounds, 722 F.2d 629 (11th Cir. 1983) (on motion for rehearing), cert. denied, 465 U.S. 1084, 104 S. Ct. 1456, 79 L. Ed. 2d 733 (1984).

Defendant in a capital murder trial must be allowed to proffer to the jury any evidence of mitigation submitted as a basis for a sentence less than death. Westbrook v. Zant, 704 F.2d 1487 (11th Cir. 1983), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 90 L. Ed. 2d 371 (1986).

Grandparent's testimony of not wishing to see a grandchild die is admissible in mitigation at the sentencing phase of a death penalty case. Romine v. State, 251 Ga. 208, 305 S.E.2d 93 (1983), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912, 95 L. Ed. 2d 517 (1987).

State's duty to fund capital defendant's attempt to present mitigating evidence.

- A capital defendant's right to present evidence in mitigation places an affirmative duty on the state to provide the funds necessary for production of that evidence. Westbrook v. Zant, 704 F.2d 1487 (11th Cir. 1983), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479 (11th Cir. 1986).

Court need not point out specific mitigating circumstances.

- In making it clear to the jury that mitigating circumstances must be considered, there is no requirement that the trial court point out specific mitigating circumstances which may be present in a defendant's case and it is also unnecessary to include the magic words "mitigating circumstances" in the charge. Where Georgia juries are instructed in sentencing to consider all the facts and circumstances which have appeared at both phases of the trial, this necessarily includes any mitigating circumstances which defendant has shown, or argued, or both. Zant v. Gaddis, 247 Ga. 717, 279 S.E.2d 219, cert. denied, 454 U.S. 1037, 102 S. Ct. 579, 70 L. Ed. 2d 483 (1981).

State must furnish the services of a psychologist or psychiatrist in those capital cases deemed appropriate by the state trial court. Westbrook v. Zant, 704 F.2d 1487 (11th Cir. 1983), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 90 L. Ed. 2d 371 (1986).

Appointment of psychologist properly denied.

- Where request by indigent in capital murder case for appointment of psychologist or psychiatrist was not for purpose of determining the indigent's sanity or competency to stand trial but rather to reveal the indigent's inability due to prolonged incarceration to conform the indigent's conduct so as to constitute a mitigating factor against a death penalty sentence, trial court did not abuse its discretion in denying the request. Westbrook v. Zant, 704 F.2d 1487 (11th Cir. 1983), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 90 L. Ed. 2d 371 (1986).

Death sentence properly applied where rape victim killed.

- The application of O.C.G.A. § 17-10-30(b)(7) (imposition of death sentence) to a defendant who raped the victim before murdering the victim did not violate the defendant's Eighth Amendment rights. Johnson v. Kemp, 759 F.2d 1503 (11th Cir. 1985).

Death penalty in domestic murder cases.

- Although lesser sentences than death are frequently imposed in domestic murder cases, it does not follow that the death penalty would not be authorized for the murder of one spouse by another under any circumstances. Some of the more vile, horrible, or inhuman homicides have been perpetrated by family members against one another. Godfrey v. State, 248 Ga. 616, 284 S.E.2d 422 (1981), cert. denied, 456 U.S. 919, 102 S. Ct. 1778, 72 L. Ed. 2d 180 (1982).

The death penalty does not constitute cruel and unusual punishment when imposed for a domestic homicide. Tyler v. Kemp, 755 F.2d 741 (11th Cir.), cert. denied, 474 U.S. 1026, 106 S. Ct. 582, 88 L. Ed. 2d 564 (1985), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 93 L. Ed. 2d 371 (1986).

Resentencing from concurrent sentences including death to consecutive life sentences.

- Where the state trial court originally sentenced defendant to death for a kidnapping and to life imprisonment for armed robbery, presumably to run concurrently, but the death sentence was set aside on direct appeal, and the case was remanded to the trial court for resentencing on the kidnapping count, and, upon resentencing, the trial court imposed a second life sentence for the kidnapping, specifically directing that it was to run consecutively to the original life sentence for the armed robbery, the trial court did not impose a harsher sentence after remand than that originally imposed in violation of the eighth and fourteenth amendments, since a death sentence, even when imposed concurrently with a life sentence, is more severe than two life sentences, whether imposed concurrently or consecutively to each other. Thomas v. Newsome, 821 F.2d 1550 (11th Cir.), cert. denied, 484 U.S. 967, 108 S. Ct. 461, 98 L. Ed. 2d 401 (1987).

When the sentencing phase of a death penalty case is retried by a jury other than the one which determined guilt, evidence presented by the defense, as well as evidence presented by the state, may not be excluded on the ground that it would only go to the guilt or innocence of the defendant. Although a resentencing trial will have no effect on any previous convictions, the parties are entitled to offer evidence relating to circumstances of the crime. Blankenship v. State, 251 Ga. 621, 308 S.E.2d 369 (1983), aff'd, 258 Ga. 43, 365 S.E.2d 265, cert. denied, 488 U.S. 871, 109 S. Ct. 183, 102 L. Ed. 2d 152 (1988).

Where a defendant is indicted and convicted on a felony murder charge, but there is sufficient evidence to support a conclusion that the defendant contemplated that life would be taken, intended to kill, and actually did kill, a death penalty is not disproportionate in relation to the defendant's participation in the crime. Ross v. Hopper, 716 F.2d 1528 (11th Cir. 1983), aff'd in part, rev'd in part on other grounds, 756 F.2d 1483 (11th Cir. 1985).

Black defendant's death sentence for the murder of a white person did not violate the eighth and fourteenth amendments, where, although the jurors possessed some racial prejudices, and some more so than others, defendant did not show that the jurors, either individually or as a whole, were influenced by prejudices that would make them favor the death penalty for a black person who murdered a white person. Dobbs v. Zant, 720 F. Supp. 1566 (N.D. Ga. 1989), aff'd, 963 F.2d 1403 (11th Cir. 1991), rev'd on other grounds, 506 U.S. 357, 113 S. Ct. 835, 122 L. Ed. 2d 103 (1993).

Racial prejudice claim did not arise from the fact that a defendant was black and the victim was white, although certain of the jurors' statements revealed racial prejudice, no juror stated that they viewed blacks as more prone to violence than whites or as morally inferior to whites, and although the trial judge and defense lawyer referred to the defendant as "colored" and "colored boy", because the defense counsel did not express those personal views at trial, and neither the lawyer nor the trial judge decided the defendant's penalty. Dobbs v. Zant, 963 F.2d 1403 (11th Cir. 1991), rev'd on other grounds, 506 U.S. 357, 113 S. Ct. 835, 122 L. Ed. 2d 103 (1993).

Remarks minimizing jurors' role in death sentence.

- Defendant was entitled to habeas corpus relief, where the prosecutor minimized the jurors' responsibility by telling them that the sole responsibility for the death sentence lay on defendant who "signed [the defendant's] own death warrant" and that they were "merely a cog in the criminal process," and the court overruled defendant's objection without explanation. Buttrum v. Black, 721 F. Supp. 1268 (N.D. Ga. 1989), aff'd, 908 F.2d 695 (11th Cir. 1990).

No prohibition against executing mentally ill but competent defendant.

- Defendant, who was not found by the jury to be mentally ill, was not entitled to have the death sentence vacated on mental illness grounds, as O.C.G.A. § 17-7-131 did not preclude a death sentence on mental illness grounds, and there was no constitutional prohibition under U.S. Const., amend. 8 or Ga. Const. 1983, Art. I, Sec. I, Para. XVII against a death sentence for a competent but mentally ill defendant. Lewis v. State, 279 Ga. 756, 620 S.E.2d 778 (2005), cert. denied, 547 U.S. 1116, 126 S. Ct. 1917, 164 L. Ed. 2d 671 (2006).

ALR.

- Manner of inflicting death sentence as cruel or unusual punishment, 30 A.L.R. 1452.

Amount of bail required in criminal action, 53 A.L.R. 399.

Constitutionality of statute providing for penalty or forfeiture as affected by failure to fix maximum amount, 53 A.L.R. 942.

Constitutionality and construction of statute enhancing penalty for second or subsequent offense, 116 A.L.R. 209; 132 A.L.R. 91; 139 A.L.R. 673.

Constitutionality and construction of statute enhancing penalty for second or subsequent offense, 139 A.L.R. 673.

Court's power and duty, pending determination of habeas corpus proceeding on merits, to admit petition to bail, 56 A.L.R.2d 668.

Insanity of accused as affecting right to bail in criminal case, 11 A.L.R.3d 1385.

Length of sentence as violation of constitutional provisions prohibiting cruel and unusual punishment, 33 A.L.R.3d 335.

Prison conditions as amounting to cruel and unusual punishment, 51 A.L.R.3d 111.

Review for excessiveness of sentence in narcotics case, 55 A.L.R.3d 812.

Drug addiction or related mental state as defense to criminal charge, 73 A.L.R.3d 16.

Pretrial preventive detention by state court, 75 A.L.R.3d 956.

Validity of a state statute imposing mandatory sentence or prohibiting granting of probation or suspension of sentence for narcotics offenses, 81 A.L.R.3d 1192.

Modern status: Right of peace officer to use deadly force in attempting to arrest fleeing felon, 83 A.L.R.3d 174.

Validity, construction, and effect of Uniform Alcoholism and Intoxication Treatment Act, 85 A.L.R.3d 701.

Constitutionality of state legislation imposing criminal penalties for personal possession or use of marijuana, 96 A.L.R.3d 225.

Validity and construction of statute or ordinance mandating imprisonment for habitual or repeated traffic offender, 2 A.L.R.4th 618.

Judicial power to order discontinuance of life-sustaining treatment, 48 A.L.R.4th 67.

Automobiles: validity and construction of legislation authorizing revocation or suspension of operator's license for "habitual," "persistent," or "frequent" violations of traffic regulations, 48 A.L.R.4th 367.

Validity and construction of prison regulation of inmates' possession of personal property, 66 A.L.R.4th 800.

"Guilty but mentally ill" statutes: validity and construction, 71 A.L.R.4th 702.

Validity, construction, and effect of body execution statutes allowing imprisonment based on judgment, debt, or the like - modern cases, 79 A.L.R.4th 232.

Prejudicial effect of statement by prosecutor that verdict, recommendation of punishment, or other finding by jury is subject to review or correction by other authorities, 10 A.L.R.5th 700.

Right of extraditee to bail after issuance of governor's warrant and pending final disposition of habeas corpus claim, 13 A.L.R.5th 118.

Propriety of carrying out death sentences against mentally ill individuals, 111 A.L.R.5th 491.

Application of constitutional rule of Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), that execution of mentally retarded persons constitutes "cruel and unusual punishment" in violation of Eighth Amendment, 122 A.L.R.5th 145.

When does forfeiture of real property violate excessive fines clause of Eighth Amendment or state constitutions - State cases, 124 A.L.R.5th 509.

Validity, construction, and application of § 504 of Labor-Management Reporting and Disclosure Act (29 USCS § 504), precluding certain convicted persons from serving in union office for specified period, 98 A.L.R. Fed. 481.

Excessiveness or adequacy of awards of compensatory damages in civil actions for deprivation of rights under 42 USCS § 1983 - modern cases, 99 A.L.R. Fed. 501.

When does forfeiture of currency, bank account, or cash equivalent violate excessive fines clause of Eighth Amendment, 164 A.L.R. Fed. 591.

When does forfeiture of real property violate excessive fines clause of Eighth Amendment - post-Austin cases, 168 A.L.R. Fed. 375.

When does forfeiture of motor vehicle pursuant to federal statute violate excessive fines clause of Eighth Amendment, 169 A.L.R. Fed. 615.

Excessive fines clause of Eighth Amendment - Supreme Court cases, 172 A.L.R. Fed. 389.

Prison inmate's Eighth Amendment rights to treatment for sleep disorders, 68 A.L.R.6th 389.

Retroactive application, in postconviction proceedings, of constitutional rule of Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), that mandatory life sentence without parole for those under age of 18 at time of their homicide crimes violates Eighth Amendment's prohibition of cruel and unusual punishments, 102 A.L.R.6th 637.

Prison inmate's or pretrial detainee's Eighth Amendment rights, or rights related to claims of "deliberate indifference," with respect to pregnancy, 5 A.L.R.7th 7.

Construction and application of rule announced in Miller v. Alabama that sentences of life without parole for persons under 18 at time of committing homicide offense violate Eighth Amendment if mandatory and imposed without considering youth-related factors, 16 A.L.R.7th 4.

Construction and application of Eighth Amendment's prohibition of cruel and unusual punishment - U.S. Supreme Court cases, 78 A.L.R. Fed. 2d 1.