The English Bill of Rights and the American Constitution talk about cruel and unusual punishment. While it makes perfect sense that a humane society frowns upon being cruel even to a convicted criminal, I wonder what the precise meaning and significance of “unusual” in this context is.
If the executioner enters the execution chamber riding on a unicycle and dressed in a clown costume, this would certainly be unusual, but not really “cruel”. OTOH, feeding a convict to the lions in a stadium is definitely cruel and also highly unusual, but why does the “unusual” part really matter here?
Possibly so jailers cannot act outside of protocol, to amuse themselves, humiliate and debase. Something jailers have been known to participate in, in the the past.
This is a question that only SCOTUS can answer and that answer will change with different generations. Clearly the framers of the Constitution had their own view but I don’t think that view would be relevant now anyway. Autre temps autres moeurs.
I’d speculate that it prevents the government from simply introducing new punishments faster than the court system can assess them. It takes time to establish a legal consensus that a punishment is cruel. If the government was only prohibited from using cruel punishments, it could set up a punishment and keep using it as the court system working its way through the process of determining whether or not that particular punishment was cruel. And if the court system eventually decided it was cruel, the government could just switch to a new punishment and start the whole process over again.
But while it’s difficult to establish a punishment is cruel, it’s pretty easy to establish that one is unusual. A ban on unusual punishments prevents the government from just inventing a new form of punishment every year and using it until it’s ruled to be cruel. It limits the government to established forms of punishment which the courts have had time to consider.
It allows for cruel ‘usual’ punishments to continue while sounding like there are no cruel punishments allowed due to using the ‘and’ conjunction instead of ‘or’.
I don’t think it’s ever been interpreted like that, and the language doesn’t require it to be simply because of the use of the ‘and’. Instead the SCOTUS has provided more specific guidelines for what is disallowed.
Right. The “and” here indicates the totality of the universe of cruel punishments and unusual punishments. Cruel usual punishments are not allowed, once it has been determined that a punishment is cruel.
In the current term, the dissenters on a death penalty case brought up, but did not decide, the question of whether the death penalty in and of itself is inherently cruel. Under current law it is not. If it is found to be in the future, then it will be unconstitutional even though it had been “usual.”
Jon Stewart had a wonderful four-square diagram last night showing which punishments were cruel, unusual, neither or both. I just remember that the Not Cruel/Not Unusual box included “dying peacefully in bed surrounded by your family” and “obesity”.
I think SCOTUS has interpreted it that way. I vaguely remember a case from the mid-1980’s that turned on this. IIRC it was a frivolous case – something like a prisoner wasn’t allowed to watch TV, he sued because that was “cruel and unusual”, the case got dismissed through all the court levels. Astonishingly, the SC took the case for some reason.
They ruled that, to be unconstitutional, “cruel and unusual” meant the punishment had to be cruel AND unusual. If it was either of those things alone, it was permitted. So I guess the guy finally didn’t get to watch TV.
But why in the world did the SC even take such a trivial case? Apparently, as best I could guess, because they wanted ahead of time to make exactly that “cruel and unusual” ruling once-and-for-all and in this case they saw the chance to make the ruling that they wanted all along in the first place.
So, if we occasionally burn a convict alive, that’s forbidden because it’s cruel and unusual. But if we make a regular practice of burning convicts alive by the hundreds every year, then it’s permissible because that isn’t cruel and unusual.