The Supreme Court of the US just struck down a Louisiana law which allowed capital punishment for child rape. It’s not my intention to debate the Louisiana law nor capital punishment in general, but rather the court’s reasoning. They cited the 8th amendment, the lack of proportionality in punishing a crime other than murder with death, and said that by punishing by death (paraphrase, I can’t copy and paste right now) “the law risks…sudden descent into brutality…transgressing the constitional commitment to decency and restraint”. The 8th amendment only prohibits excessive bail and cruel and unusual punishment. Is disproportional punishment in and of itself enough to qualify as cruel or unusual? Would the idea of disproportionality apply to non-capital punishment as well? Could this argument be used to strike down mandatory minimum sentences? What about the tactic of arguing against the constitutionality of any particular punishment, ie. Plead guilty to a speeding ticket, then bring a federal case claiming the fine is disproportional?
The 8th amendment also prohibits “excessive fines”. I believe the controlling theory is that also means excessive punishments as well, although some Justices (notably Scalia) disagree vehemently, citing your hypothetical as a concern (everything could be a federal case).
Also, as in my thread, count me in the column saying that this decision is raw judicial activism…
I think the key is, is the punishment considered both cruel and unusual. I don’t have a cite handy, but I recall reading about challenges that failed because while the punishment was unusual, it was not considered cruel.
*** Ponder
The whol concept of “cruel and unusual” punishment creates a proportionality aspect to the discussion. I’d argue just viewed in a vaccuum. Life imprisonment is neither cruel nor unusual for a serial killer. For a parking violator, on the other hand, it is both.
I believe that is the way the Bill of Rights was written for a reason. Other’s have a different reading, and think that despite the choice of using a deliberately vague phrase such as “cruel and unusual,” the intent was to freeze things in time at that date. I’ll have to part company with them over that.
I believe the standard is generally regarded that a punishment that is cruel and/or unusual is prohibited - either one by itself is sufficient and it doesn’t require a combination of both.
So if someone was tickled on his nose with a feather for 11 seconds that would be an unconstitutional punishment since, while not cruel, it is unusual?
Arguably yes. But you’d have to find a court that was willing to rule on the issue to make it official.
IANAL but I believe the standard evolved from the other end. The combination of cruel and unusual is the plain text. Then some people argued “is a cruel punishment allowed if we do it so often that it’s not unusual?” (No joke. This argument has been presented in court.) The rulings have been that it doesn’t have to be cruel and unusual. I’ll admit I don’t know offhand of any ruling that directly addressed the issue of a punishment that was unusual but not cruel but I think once you’ve ruled that “and” in this clause means “and/or” it works in both directions.