Question: cruel and unusual punishment.

[Jed Dilligan]

Does this phrase mean punishment has to be both "cruel" and "unusual" to be unconstitutional?

At the time the phrase was written petty thieves were hanged. Cruel--obviously. But usual.

Does this mean any punishment that is done regularly is constitutional no matter how cruel it is?

Or does the constitution really mean cruel OR unusual punishment?

[TechBear_Seattle]

1. The phrase "cruel and unusual" means....

Any punishment which goes beyond the standard punishment for the crime. For example: If convicted pickpockets get their right hand cut off, cutting off the right hand of a person convicted of picking pockets would not meet the definition of "cruel and unusual." If convicted pickpockets usually serve a month in prison, however, then sentencing a convicted pickpocket to lose his right hand would meet the definition of cruel and unusual.

The point of this right is to protect a person from special punishments which might be motivated on the grounds of discrimination or personal animosity. Unfortunately, it does not work in the other direction and allows more lenient sentences on the grounds of fraternity or personal friendship.

[Jed Dilligan]

3. Interesting.

In a lot of states executions happen rarely enough that someone could argue they are unusual. But I guess the "punishment" is the sentence, not the actual penalty.

[TechBear_Seattle]

7. That starts to get into finer morality than, I think, the Founders intended

Most items in the Bill of Rights were issues because they represented abuses common under British rule at the time. The prohibition against cruel and unusual punishment arose directly out of the way many British judges used their authority as a way of intimidating defendants or punishing them for minor, even imaginary, infractions or insults. Although decried as an abuse, there was no prohibition against a judge saying, "You have red hair. Red hair is proof that you are an incorrigible criminal who will only continue to prey on society if given a chance. Instead of one month in jail, you are going away for life." Such sentencing was common enough that the Founders believed it necessary to prevent it from happening in their new country.

Personally, I agree with your sentiment regarding capital punishment. However, I not think we have reached a point yet where executions meet the definition of cruel and unusual that was used by the Founders.

[northzax]

2. well, I wouldn't think

that, at the time, hanging a thief was considered to be neither cruel nor unusual. it is really one of the amendments that makes me think the founders intended the document to be reviewed in the context of the times, not as an absolute document.

[Jed Dilligan]

4. How much punishment would it take for something

to become "usual"? Conversely, how much would a penal practice have to abate in order to become "unusual"?

[northzax]

6. that is something that, to me, is in the opinion of society

which is why I think this is something that was designed to change over time.

[Gregorian]

5. I think this is an instance where "and" actually translates as "or".

If you think about it, if it's cruel to the extent that it's giving rise to contemplating it's legitimacy, then it's more than likely also unusual. And vice versa.

But if you ask your question with respect to the present administration, all meaning is lost. The "god damned piece of paper" doesn't reign supreme. But you already knew that.


I suppose I shouldn't have even replied. I suppose you are asking those who are intimately familiar with constitutional law. Which I am not. So there.

It's obvious though that what we have done is more than unusual AND cruel. At least in Abu Ghraib, etc.