# Historical basis for interpreting "cruel and unusual punishment" as cruel, period?
**URL:** https://boards.straightdope.com/t/historical-basis-for-interpreting-cruel-and-unusual-punishment-as-cruel-period/480769
**Category:** Factual Questions
**Created:** [January 11, 2009, 5:52am UTC](https://boards.straightdope.com/t/historical-basis-for-interpreting-cruel-and-unusual-punishment-as-cruel-period/480769 "2009-01-11T05:52:05Z")
**Posts on this page:** 9
**Page:** 1
### Author:  [@Vox\_Imperatoris](https://boards.straightdope.com/u/Vox_Imperatoris)
#### Post date: [January 11, 2009, 5:52am UTC](https://boards.straightdope.com/t/historical-basis-for-interpreting-cruel-and-unusual-punishment-as-cruel-period/480769/1 "2009-01-11T05:52:05Z")
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?
Valete,
Vox Imperatoris
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [January 11, 2009, 6:34am UTC](https://boards.straightdope.com/t/historical-basis-for-interpreting-cruel-and-unusual-punishment-as-cruel-period/480769/2 "2009-01-11T06:34:40Z")
Let’s start here.
[Eighth Amendment](http://en.wikipedia.org/wiki/Eighth_Amendment_to_the_United_States_Constitution)
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> This amendment was ratified as part of the United States Bill of Rights in 1791. It is almost identical to a provision in the English Bill of Rights of 1689, in which Parliament declared, "as their ancestors in like case have usually done…that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
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> The state of Virginia had adopted this italicized language of the English Bill of Rights in the Virginia Declaration of Rights of 1776, and the Virginia convention that ratified the U.S. Constitution recommended in 1788 that this language also be included in the Constitution. James Madison changed “ought” to “shall”, when he proposed the amendment to Congress in 1789. …
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> In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan wrote, “There are, then, four principles by which we may determine whether a particular punishment is ‘cruel and unusual’.”
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> The “essential predicate” is “that a punishment must not by its severity be degrading to human dignity,” especially torture.
> “A severe punishment that is obviously inflicted in wholly arbitrary fashion.”
> “A severe punishment that is clearly and totally rejected throughout society.”
> “A severe punishment that is patently unnecessary.”
[Cruel and Unusual Punishment](http://en.wikipedia.org/wiki/Cruel_and_unusual_punishment)
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> What these words mean in practice is the subject of much legal argument. In general the interpretation of each of the two words is in keeping with the basic legal maxim that the “punishment should fit the crime”.
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> The term “cruel” is necessarily flexible according to the circumstances, since all punishments have the potential to be cruel to some greater or lesser degree. The “unusual” provision has proven easier to interpret: providing that persons will not be subjected to arbitrary, humorous, or capricious punishment outside the normal course of the law (for example, tarring and feathering). Another way to make the punishment usual is to simply use it more often.
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.
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### Author:  [@squeegee](https://boards.straightdope.com/u/squeegee)
#### Post date: [January 11, 2009, 6:40am UTC](https://boards.straightdope.com/t/historical-basis-for-interpreting-cruel-and-unusual-punishment-as-cruel-period/480769/3 "2009-01-11T06:40:07Z")
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.
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### Author:  [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)
#### Post date: [January 11, 2009, 6:44am UTC](https://boards.straightdope.com/t/historical-basis-for-interpreting-cruel-and-unusual-punishment-as-cruel-period/480769/4 "2009-01-11T06:44:09Z")
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.”
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### Author:  [@AK84](https://boards.straightdope.com/u/AK84)
#### Post date: [January 11, 2009, 12:18pm UTC](https://boards.straightdope.com/t/historical-basis-for-interpreting-cruel-and-unusual-punishment-as-cruel-period/480769/5 "2009-01-11T12:18:34Z")
From the top of my head, various case law in different countries with similar provisions
Cruel and Unusual has been held to mean
1. Excessive to the crime
2. Degrading
3. Arbitary
4. Given more than once
5)Fails to into account mitagating factors
1. 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.
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### Author:  [@Napier](https://boards.straightdope.com/u/Napier)
#### Post date: [January 11, 2009, 1:23pm UTC](https://boards.straightdope.com/t/historical-basis-for-interpreting-cruel-and-unusual-punishment-as-cruel-period/480769/6 "2009-01-11T13:23:42Z")
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.
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### Author:  [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)
#### Post date: [January 11, 2009, 4:02pm UTC](https://boards.straightdope.com/t/historical-basis-for-interpreting-cruel-and-unusual-punishment-as-cruel-period/480769/7 "2009-01-11T16:02:17Z")
> [@](#):
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> 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.
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### Author:  [@AK84](https://boards.straightdope.com/u/AK84)
#### Post date: [January 11, 2009, 4:08pm UTC](https://boards.straightdope.com/t/historical-basis-for-interpreting-cruel-and-unusual-punishment-as-cruel-period/480769/8 "2009-01-11T16:08:12Z")
Inventing novel punishments? Does’nt that bring us back to Sheriif Joe of Arizona fame, who I know Little Nemo has the utmost respect for.
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### Author:  [@casdave](https://boards.straightdope.com/u/casdave)
#### Post date: [January 11, 2009, 6:15pm UTC](https://boards.straightdope.com/t/historical-basis-for-interpreting-cruel-and-unusual-punishment-as-cruel-period/480769/9 "2009-01-11T18:15:26Z")
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.