Death penalty ruled 'cruel and unusual' - Furman v. Georgia, 1972

[minionofmidas]

They struck down the Death Penalty laws in current existence. They didn't rule the Death Penalty as such unconstitutional, so your argument in your first post really goes nowhere, Emsworth. (Also, your first example doesn't even deal with the death penalty, and your second one also declares mutilation constitutional.)

[minionofmidas]

They struck down the Death Penalty laws in current existence. They didn't rule the Death Penalty as such unconstitutional, so your argument in your first post really goes nowhere, Emsworth. (Also, your first example doesn't even deal with the death penalty, and your second one also declares mutilation constitutional.)

How does the first example fail to deal with the death penalty? It refers to "capital" crimes.

Not to punishment.

[minionofmidas]

Oh, and I don't think amputation of arms, boring through the tongue, etc, were still considered usual at the time. The 18th century was really quite enlightened in judicial practice - though not ancient, unreformed bodies of law - much better than the 19th in many but not all respects.

[minionofmidas]

Not to punishment.

A capital crime is a crime that can be punished by death. What else could it mean?

I've checked, and that indeed is the only meaning it has in English (apart from stupid puns). In German, the definition of Kapitalverbrechen is given as, any major crime, or any crime previously punishable by death ... examples stated being murder, rape, and conspiracy. which is what I started out from. Sorry!

[minionofmidas]

This of course is assuming that a 1789 member of the constitutional convention was aware of the historical meaning of the phrase. Given that boring through the tongue, amputation of limbs etc had gone out of use in the Americas quite a while before, and the phrase "life and limb" sounds so cool, this may be too large an assumption actually.

[minionofmidas]

This is because the legal term, premeditated, has been rendered meaningless by a succession of hanging judges.
To medieval and early modern observers, most current "murders" would not be murders but second-degree manslaughters, precisely because they're not actually premeditated - they weren't planned out in detail.
Of course it hardly mattered back then because manslaughter was a capital crime too - just that the punishment was beheading, followed by a Christian burial, rather than some horrid torture-to-death followed by a shallow unmarked grave somewhere on the edge of town. Murder convictions were extremely rare.

[minionofmidas]

The Constitution explicitly contemplates the usage of the death penalty three times in the Fifth Amendment, and once in the Fourteenth.

Yes, Em has already pointed that out.