Friday, May 06, 2005


Unusually Cruel? Cruelly Unusual?

Does the US Constitution forbid punishment that is both cruel AND unusual, or punishment that is either cruel OR unusual.

The boolean implications are significant. Can a cruel punishment be allowed in the US, constitutionally, as long as it's NOT unusual?

In common-sense parlance, it's a non-argument: the wording says cruel AND unusual. One would presume that if the Founders had meant cruel OR unusual, they would have said so. They did not.

But in the Penumbra Era, one still wonders ... legally, must a punishment be both, as stated?

We all see examples in the press, from time to time, of the opposite: punishments that are unusual, though not cruel; often the press simply tags the judge as eccentric in these cases, and they are presented more as human interest stories than as anything else. But those punishments are not challenged, to my knowledge, on the basis of their simply being unusual, which would imply that one could also not challenge a punishment on the basis of its simply being cruel.

Must they be both? Are there precedents?