The thought occurred to me last night as I was laying in bed. There was a local news story about someone who had recieved the death penalty for killing a policeman, and was about to be executed, and there were several protestors outside the facility, carrying signs, etc. One of the signs decried the death penalty as “cruel and unusual punishment,” a refrain I have heard often throughout my life in this circumstance. And I got to analyzing the sign. The Constitution DOES forbid cruel AND unusual punishment. But it doesn’t say anything about one or the other. So, by that rationale, something can be cruel, as long as it’s not unusual. And something is not unusual if it happens enough. So, I understand the point that the protestors were trying to make. But if they started executing criminals more often, wouldn’t that make it Contitutional, since it would only be cruel, and not unusual?
History has not ever (I think) seen common, frequent state sanctioned death penalty except in extreem & unusual cases. So increasing the number of people put to death would therefore be unusual, and forbidden Q.E.D.
IANAL but I believe that it means that cruel punishments and unusual punishments are unconstitutional. It does not have to be both.
Unlikely as it may seem, this argument has actually been made in legal proceedings. It was over a class action suit against a southern prison system. Without going into details, suffice it to say that this was a prison system with problems. Abuses were serious, widespread, and incontestably documented. At some point the best argument the state’s attorney felt he could make was that while numerous practices which were occurring were cruel, the fact that they were so numerous meant they were no longer unusual. The judgement that was handed down clearly established that punishments are unconstitutional if they are cruel or unusual or both.