Cruel and Unusual: I get the cruel, but what did the founding fathers mean by unusual?

[armyowalgreens]

It seems to me like "Cruel and unusual" are redundant.

If something is cruel, it's unusual.

So what do you think is a proper definition of "unusual" punishment when applied to modern justice systems?

[Callalily]

1. Unfortunately, in our modern

justice system it seems anything goes.

What was originally meant by that statement "cruel and unusual punishment is the use of torture, and/or inhumane or degrading treatment.

[ColbertWatcher]

2. I'm not a legal scholar by any means, but ...

... maybe what they meant was "out of the ordinary."

For instance, stealing a loaf of bread gets one person a 30-day sentence in Beverly Hills, but stealing a loaf of bread in Compton gets the "unusual" sentence of 3 years.

I don't really know.

[armyowalgreens]

3. But isn't that simply excessive and not "unusual"?

[ColbertWatcher]

6. Personally, I'm a "living Constitutionalist," so ...

... not to be rude or anything, I don't care too much what they Founding Fathers meant exactly, so much as what it means to us now.

Originalists are morans.

[armyowalgreens]

8. I am not a fan of the originalist mentality either.

I personally only care about the constitution because it is vastly correct. If we come to a point where the path of the an ethical and proper US conflicts with a passage in the constitution, the constitution becomes our enemy.

[ColbertWatcher]

9. It would only be an "enemy" if we don't change it.

It allows us to change it. This is why I'm a "living Constitutionalist."

[armyowalgreens]

11. True.

I just hate it when right-wing assholes bitch about how the government is taking on more power than allowed in the constitution.

Even if that was correct, which is really isn't, I really don't give a shit. I want what's best for the country, not what's best for the constitution or our founding fathers. They were a bunch of really smart old guys that lived in a much different time than us. They were smart, not prophets.

But like always, if I talk down on the holiness of our founding fathers, I'm labeled as unamerican.

[ColbertWatcher]

12. Well, technically ...

... the government did take more power than what was Constitutionally allowed ... when the GOP was in power.

The biggest problem the GOPers have with "the government" is that the government didn't just suddenly appear from out of no where and the government isn't some foreign entity.

The government is made up of the people. The GOPer's dissatisfaction with "the government" stems from a misunderstanding that can only be solved by their participation in it, not their abandonment of it.

Even if their opinion is a minority opinion, they are still citizens whose participation is necessary.

Another problem they have is not being able to tell the difference between the "government" and an "administration."

[armyowalgreens]

15. Well I don't think the GOP wants to abandon government...

They love that military budget. They just hate the idea that any other form of government can provide welfare for the people.

[frogcycle]

4. Excellent question

It could mean almost anything you want it to.

All the efforts to make capital punishment "humane" - i.e., quick and painless fall short if it is still "unusual." I guess if it were applied across the board to all felons it would be "usual" though.

[Zywiec]

5. Four principles by which we may determine whether a particular punishment is 'cruel and unusual'"

* The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," especially torture.
* "A severe punishment that is obviously inflicted in wholly arbitrary fashion."
* "A severe punishment that is clearly and totally rejected throughout society."
* "A severe punishment that is patently unnecessary."

[armyowalgreens]

7. Doesn't that create a moving standard?

It seems like those 4 principles are effected by public opinion which can be changed by simply using propaganda.

Lets assume we could get a large majority of the population to support torture, does that make it less cruel and unusual?

Do all those principles need to be met in order to qualify as cruel and unusual or can some be broken?

[CJCRANE]

10. It's probably just for emphasis...

there are a lot phrases that have two words that go together often with similar meanings, they are called "doubles"...

Examples are "hale and hearty", "rant and rave", "fast and furious"...

[ColbertWatcher]

13. I am shocked and awed by your post. n/t

[Berry Cool]

14. "Unusual" was an unwise word to use. It's one beef I have with the document, really.

Because "unusual" makes the whole statement so pointless. "Unusual" as compared to WHAT? Whose standard for what is "usual"?

There could be wording in the Constitution prohibiting ownership of "exceptionally ugly" dogs. Well, what's an "exceptionally" ugly dog, vs. a plain old ugly dog? For that matter, what's an "ugly" dog? Aren't all dogs beautiful to their owners?

[greenman3610]

16. visit the torture museum in Amsterdam. That'll give you an idea.

[Dead_Parrot]

17. I always assumed it meant "not usual"

And no, that's not snark. Let's say 5 guys steal 5 cars: 4 of them get a year in prison, and the 5th is sentenced to death. That guy is not getting the usual punishment - he's getting unusual punishment, and should have grounds for appeal because of it.

It seems like it should be a good idea - it allows punishments to evolve over time, but keeps any sudden changes and rogue courts out of the system (In theory, at least).

Just my theory, though - I might be talking out of my ass. :)

(Bonus points, BTW, for guessing which guy was black. But that's another story. :( )

[Statistical]

19. That is EXACTLY what it means.

No cruel punishment = no cutting off your hand for stealing, no forcing a mother who killed her child by not putting him/her in a carseat to watch videos of that childs autopsy every day in jail.

No unusual punishment = should be consistent and keeping with standards of society not excessive or unexpected.

If I say "what do you think a first time car thief should get for stealing a car?" to 100 people I will get a variety of responses however if we take the average it probably will be around a couple years in prison.

If I told you they just hanged someone for stealing a car you would find that strange/unusual.

That is the societal norm for "stealing a car". Now the norm changes. Lots of cars being stolen, citizens end up getting 2,3,5 cars stolen in a year there will be pressure to bring that norm up. Legislature will increase the sentence. So it is a moving target but it still is a target.

[Towlie]

18. I believe it means judges can't get creative and dream up new kinds of punishment.