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Donald Ian Rankin

(13,598 posts)
Wed Jun 11, 2014, 01:31 PM Jun 2014

Why is "unusual" punishment worse?


I could understand forbidding "cruel" punishment, depending on what you define as being "cruel" (clearly, any punishment is going to be at least somewhat cruel, or it wouldn't be a punishment).

But why are "unusual" punishments worse than "usual" ones, in either abstract or concrete terms?

If the USA were to introduce bastinado as a punishment, and apply it sufficiently widely that it ceased to be unusual, would it become constitutional?
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Blue Meany

(1,947 posts)
1. My guess is that it has something to do with equality before
Wed Jun 11, 2014, 01:40 PM
Jun 2014

the law. If someone is getting unusual punishment, they are probably not being treated equally. And I would definitely consider the bastinado cruel.

Donald Ian Rankin

(13,598 posts)
3. It clearly is cruel. But cruel punishment isn't unconstitutional, as I understand it.
Wed Jun 11, 2014, 01:43 PM
Jun 2014

After all, imprisonment is cruel.

The 8th amendment forbids cruel *and* unusual punishment, not cruel *or* unusual punishment, which is what I'm wondering about.

ret5hd

(20,435 posts)
5. Oh, I didn't understand you were wanting to discuss the use of boolean logic as applied to
Wed Jun 11, 2014, 01:47 PM
Jun 2014

linguistics, and the resultant confusions that sometimes result.

Maybe the printers of the 8th ran out of "/"'s and couldn't spell out "and/or". Too bad, huh? Think of all the confusion they could have avoided.

mathematic

(1,430 posts)
15. This has nothing to do with boolean logic
Wed Jun 11, 2014, 03:27 PM
Jun 2014

George Boole did not invent the meaning of "and". Stop using jargon you don't understand.

 

Spider Jerusalem

(21,786 posts)
4. That's not what it means.
Wed Jun 11, 2014, 01:43 PM
Jun 2014

It means "unusual" in the sense of "in excess of the usual penalty" (like executing someone for stealing a candy bar, for instance).

frazzled

(18,402 posts)
6. "and"
Wed Jun 11, 2014, 01:52 PM
Jun 2014

The statement is conjunctive, not disjunctive, and to qualify as a true case of a punishment that is forbidden, it must be considered both cruel and unusual, not merely one or the other.

An unusual punishment might be tickling with a feather, or being sent to do community work at a vegetable farm. Neither of those is particularly cruel.

The usual punishments are incarceration, community service of some sort, etc. Being put in the stocks for public display is unusual these days ... but is additionally cruel (both physically and mentally).

unblock

(51,975 posts)
8. so something unambiguously "cruel" would be constitutional were it to become commonplace?
Wed Jun 11, 2014, 01:57 PM
Jun 2014

let's say the somehow some state brings back the rack and thumb screws and no one manages to get a case to the supreme court for 40 years. by then it has caught on and most states are doing it and it is quite common.

then it would be constitutionally permitted?

frazzled

(18,402 posts)
11. Yes, take the death penalty
Wed Jun 11, 2014, 02:44 PM
Jun 2014

While I have consistently opposed it for decades (partly because of its cruelty, but also because I do not believe the state, as an institution, has a right to take a life as a form of "justice&quot , and while killing is pretty unambiguously considered "cruel" in general, it has been accepted as a very "usual" in our system for a long time.

First it was hanging, then the electric chair, now injections. All of these have been accepted until considered too cruel or out of step with the times (unusual?).

Societal attitudes about death by injection are now beginning to change, with the revelations that innocent people have been put to death and with the acknowledgment of cruelty we previously did not realize was associated with the drugs. Pretty soon, I believe, the death penalty will be considered cruel and unusual altogether.

Lengthy solitary confinement is decidedly cruel, but it is administered quite frequently. In time, we may hopefully abandon that practice as well.

ON EDIT: I think what is involved here is what the courts have referred to as "evolving standards of decency":

The Court has also ruled that execution of mentally retarded criminals violates the Eighth Amendment's guarantee against cruel and unusual punishment. Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). Citing "evolving standards of decency," the Court in Atkins stated that its decision was informed by a national consensus reflected in deliberations of the American public, legislators, scholars, and judges. Atkins overruled Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L. Ed. 2d 256 (1989), a decision rendered just 13 years earlier. However, in Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989), the Court found that there was no national consensus prohibiting the execution of juvenile offenders over age 15.

http://legal-dictionary.thefreedictionary.com/Cruel+and+Unusual+Punishment


It's sad but true: we (as a society) still seem to think its okay to execute juvenile offenders.
 

LanternWaste

(37,748 posts)
9. I imagine maintaining a humane standard is part and parcel of the contemporary definition of "justic
Wed Jun 11, 2014, 02:15 PM
Jun 2014

"Why are "unusual" punishments worse than "usual" ones, in either abstract or concrete terms?"

I imagine maintaining a humane standard is part and parcel of the contemporary definition of "justice." "Unusual", in this case means (I believe) not merely the list of allowable punishments, but more importantly, is the punishment proportionate to the crime itself. Sentencing a spree killer to life in prison is neither cruel nor unusual, punishing a shoplifter to the same sentence is not cruel (as per definition), but is (by definition) unusual in that it is disproportionate to the crime committed.


In 1972, Justice Brennan wrote (much more eloquently than I ever could)...

"The function of these principles, after all, is simply to provide means by which a court can determine whether a challenged punishment comports with human dignity... The test, then, will ordinarily be a cumulative one: if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes..."
(Crime and Punishment: A History of the Criminal Justice System, Mitchel Roth )

treestar

(82,383 posts)
12. Maybe referring to those creative judges
Wed Jun 11, 2014, 03:00 PM
Jun 2014

Who will come up with something odd and unusual. They have no right to go beyond the proscribed punishments. People should be treated equally. Like where they order the person to stand on the street corner with a sign that says "I am -------"

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