'Unusual' Punishment

[nclib]

What would be regarded as 'unusual' punishment (i.e. not cruel, but unusual)? Has there ever been a case regarding this?

[Gabu]

It seems to me that the criteria for an "unusual punishment" is pretty simple: it's a punishment that is not often given: hence, out of the usual.

[Alcon]

I've never understood the usefulness of this portion of the Constitution made much sense.  What is inherently wrong with unusual punishments, and aren't all punishments definitionally unusual unless they were widely practised back in 1776?

[Emsworth]

The Supreme Court has never attempted to distinguish between "cruel" punishments and "unusual" punishments. Instead, it has always considered the phrase "cruel and unusual" as a unified whole.

There was one case ( Harmelin v. Michigan) in which the Supreme Court found a penalty cruel, but not unusual. The defendant had been sentenced to life imprisonment without the possibility of parole for cocaine possession. Speaking for the Court, Justice Scalia concluded, "Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout the Nation's history."

I've never understood the usefulness of this portion of the Constitution made much sense.  What is inherently wrong with unusual punishments, and aren't all punishments definitionally unusual unless they were widely practised back in 1776?

The text of the Eighth Amendment seems to indicate that a punishment must be both cruel and unusual in order to be unconstitutional.

[ilikeverin]

The text of the Eighth Amendment seems to indicate that a punishment must be both cruel and unusual in order to be unconstitutional.

So if someone was sentenced to death by heart disease for a speeding ticket, it wouldn't be unconstitutional?

[Alcon]

I've never understood the usefulness of this portion of the Constitution made much sense.  What is inherently wrong with unusual punishments, and aren't all punishments definitionally unusual unless they were widely practised back in 1776?

The text of the Eighth Amendment seems to indicate that a punishment must be both cruel and unusual in order to be unconstitutional.

But what is the point of including "unusual" then?  If it's cruel, it would have been challenged back when it's unusual - otherwise it's already not unusual, and there is no use.

[Emsworth]

But what is the point of including "unusual" then?

If a punishment was widely used in 1789, then, even if it is considered cruel today, it is not unusual.

[© tweed]

But what is the point of including "unusual" then?

If a punishment was widely used in 1789, then, even if it is considered cruel today, it is not unusual.

That's a very, very bad way to look at it.

Since there were no lethal injections in 1789, are they unconstitutional?  If you go by that definition, it is.

[Emsworth]

Since there were no lethal injections in 1789, are they unconstitutional?  If you go by that definition, it is.

Lethal injections may be unusual, but they are not cruel.

[Alcon]

I would imagine there are plenty of cruel punishments they used in 1789 that would be perfectly constitutional today simply because they were used in 1789.

The argument is not that it isn't an accurate interpretation of the Constitution, but rather that what's in the Constitution is dumb, for lack of a better word.

[Emsworth]

I would imagine there are plenty of cruel punishments they used in 1789 that would be perfectly constitutional today simply because they were used in 1789.

That is indeed correct. If something was constitutionally permissible in 1789, then it is constitutionally permissible today; the meaning of the words "cruel and unusual" do not change over time.

[Alcon]

I would imagine there are plenty of cruel punishments they used in 1789 that would be perfectly constitutional today simply because they were used in 1789.

That is indeed correct. If something was constitutionally permissible in 1789, then it is constitutionally permissible today; the meaning of the words "cruel and unusual" do not change over time.

What was the reasoning for including "unusual"?  It seems basely unnecessary.

[Emsworth]

What was the reasoning for including "unusual"?  It seems basely unnecessary.

The term was copied from the English Bill of Rights, which used "unusual" as a synonym for "illegal." The English Bill of Rights was considered a restriction on the King, not Parliament, so any punishment authorized by Parliament was not "unusual."

The Eighth Amendment, however, was originally understood as a restriction upon Congress as well. Hence, the word "unusual" seems to have acquired a different, albeit unclear meaning.

[© tweed]

Since there were no lethal injections in 1789, are they unconstitutional?  If you go by that definition, it is.

Lethal injections may be unusual, but they are not cruel.

Open to interpretation

[Joe Republic]

I think a couple different cases have dealt with this.  For example, death by being hung, drawn and quartered is now illegal for this reason.

[minionofmidas]

I would imagine there are plenty of cruel punishments they used in 1789 that would be perfectly constitutional today simply because they were used in 1789.

That is indeed correct. If something was constitutionally permissible in 1789, then it is constitutionally permissible today; the meaning of the words "cruel and unusual" do not change over time.

Um..."unusual" would imply the direct opposite to any unbiased reader, though...

[Emsworth]

Um..."unusual" would imply the direct opposite to any unbiased reader, though...

What a reader of today might think is irrelevant. What a reader of 1789 thought is important.

[minionofmidas]

Um..."unusual" would imply the direct opposite to any unbiased reader, though...

What a reader of today might think is irrelevant. What a reader of 1789 thought is important.

Yes...I recognize that...it was just a pointer, not an argument.