One thing that has always struck me as odd about the U.S. Constitution is the interpretation of that clause, forbidding cruel **and **unusual punishment. It would seem to me that that means that punishments are forbidden that are both 1. cruel and 2. not normally done (as in, a judge can constitutionally sentence someone to a cruel punishment commonly prescribed by law, a punishment not commonly prescribed by law, but not a cruel punishment not commonly prescribed by law). However, most arguments for constitutionally forbidding the death penalty focus on the fact that it is cruel in itself, as if that would be enough to make it unconstitutional even if that were true. While I agree that this would be a basis for outlawing it on a state-by-state basis, it doesn’t seem to me to be enough to make it unconstitutional. Clearly, the courts commonly use an interpretation of it that would seem to outlaw cruel punishments and unusual punishments, but how did this come about? In the time in which it was written, would using *and *like that normally mean to forbid both of those things, or just when they are combined, as it would seem to me?
Having an existing wording is always desirable in law. Wording gets tested by courts so that legislatures and lawyers come to understand what the bounds of those words are. Much of the wording of the Constitution is drawn from earlier documents, although the wording varied often enough to require new opinions.
What cruel and unusual meant was established in British law and in colonial law. The intent of that provision was probably one of the clearest of the rights at the time. Britain had had (and still had in 1783) a long history of legal torture and excessive punishments. (I believe that the number of crimes punishable by death grew into the hundreds by the 19th century.) The amendment was intended to break this pattern, although relatively so by today’s standards hence the now endless arguments over whether capital punishment fits. Nobody (with the barest few exceptions) doubted it then, but the Constitution always evolves to fit the times.
As with many aspects of Constitutional law, actual practice of the intent grew complicated enough and the gray areas so murky that justices gave up on bright line tests and devised series of judgments to narrow in on the specifics. So while the government can look separately at whether a punishment is cruel and whether it is unusual, the actual judicial test seems more comprehensive and looks at several aspects of being cruel and/or unusual.
That’s my historic view of the question. I’ll let the lawyers argue out the law side in more detail.
I always took the “unusual” clause, with no knowledge of law on my side, to be an equal protection clause: you can do X as punishment, but you can’t do X only to prisoner Y.
For example: you can hang anyone accused of murder, but you can’t decide Joe Schmoe gets to be hanged for murder and trotted down the streets nekkid beforehand. So hanging would be fine, but the nekkid trottery would be unusual, in that it was applied unevenly.
I knew a legal professor who was once part of a legal team that was desperate enough to try the argument that you made. They conceded that the conditions in the prison system they were defending were cruel but they argued they weren’t unusual and therefore it was not unconstitutional because both standards were required. The judge basically said “Nice try but it ain’t gonna work. Cruel or unusual are enough by themselves.”
From the top of my head, various case law in different countries with similar provisions
Cruel and Unusual has been held to mean
Excessive to the crime
Degrading
Arbitary
Given more than once
5)Fails to into account mitagating factors
Fails to take into account attributes of the defendantn (youth etc)
US seems to take into account cruel and unusual seperatly (at least from the above), generally the courts adopt a wholistic view. Lots of punishments are cruel, a life senetence ain’t a picnic, death sentence is rare.
Vox, I’ve long shared the view expressed in your OP, and thought the idea was to allow the usual cruel punishments (which wouldn’t be punishments if they were not at all cruel), and also provide a means of trying very different and unusual treatments on the basis that they were not cruel. So for instance if doctors invent some treatment that changes a convict so that they will never again commit their crime, but the treatment isn’t cruel, then there’d be a way to allow it. However, fiendish and bizarre cruelties would be prevented.
However I also see that “cruel and unusual” seems to be treated as “cruel and/or unusual” or perhaps “either unusual or excessively cruel”.
I’m interested particularly in explanations of the Constitutional wording that support what we see.
IANASCJ but my guess is that “nor cruel and unusual punishments inflicted” is interpreted as "cruel punishments shall not inflicted and unusual punishments shall not be inflicted. The “and” is used to group a list of punishments which are prohibited rather than being used to list a group of aspects on one punishment.
Ona seprate note, I think the ban on unusual punishments is to keep judges from going too far beyond the realm of established case law. For example, suppose a judge decided to order a convicted person to have the words “I committed a felony” tattooed on his forehead instead of being fined or imprisoned. Is that cruel or not? Some would argue that it’s a lesser punishment than the traditional ones so it can’t cruel. The problem is that there’s no precedents on the issue so it hasn’t been properly considered. The judge could have hundreds of defendants tattooed while the legal system works on deciding whether or not this new form of punishment is cruel. So the prohibition on unusual punishments was written to prevent such novel punishments without requiring the standard of cruelty being proved.
Up to Jacobean times, punishment was not just for the guilty, it was also a lesson for the benefit of the innocent.
In religous conflict, the prospect of death was not seen as a deterrant to those who believed they would go to heaven for fighting for god, whether Protestant or Catholic.
The result was that the actual process of death was to be feared, and this is what led to some of the brutal forms of exectuions such as being hanged and partitioned.
I would hazard a guess that the ‘cruel and unusual’ punishment clause was to ensure an end to this way of thinking.