The 8th amendment of the US Constitution states
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.There is an ambiguity here. Let C be cruel and U be unusual. They are saying NOT(C AND U) = NOT(C) OR NOT(U). Common sense would dictate that they meant NOT(C) AND NOT(U).
(This article was emailed to me by Lane H. along with the idea for this post.) This article (see also this Wikipedia article) is an example where the CRUEL but NOT UNUSUAL argument seems to have been explicit. The case was about a MANDATORY life sentence in prison for possessing over 650 grams of cocaine, in Michigan. Is that a lot? (I never could figure out that Metric System.) In terms of numbers or getting high I really don't know if 650 grams is a lot, but legally its NOT A LOT--- the only other state that comes close to this kind of penalty is Alabama with a life-sentence for 6500 grams---that is not a typo. (See the Wikipedia articles section on White's criticism of Kennedy's argument.) I quote the syllabus of the decision which is not written by the members of the Supreme Court and is not part of the decision, but is rather prepared by the Office of the Clerk (of the Supreme Court)---who, one assumes, is pretty darned good at extracting the key points of the ruling, and so the syllabi are very useful.
Severe, mandatory penalties may be cruel, but they are not unusual in theSome past rulings HAVE indicated that a sentences that is out-of-proportion with the crime MAY be considered Cruel and Unusual. But, alas, unlike mathematics, definitions can change over time. (Well- in math that happens sometimes, but not often and usually not with dire consequences.)
constitutional sense, having been employed in various forms throughout
the Nation's history.
- One could argue that Capital Punishment is C but NOT(U). And indeed, the courts have often upheld it. Did they they use the argument that Capital punishment is C but NOT(U), hence it does not violate the 8th amendment? This article (emailed to be my Lane) makes that line of reasoning explicit and is against it.
- If someone commits anti-Semitic vandalism and the courts decide that he or she is forced to read Anne Frank's Diary, that would be U but NOT(C). Not sure how they would enforce this- give a quiz? Are Cliff notes okay? What if the vandal saw the movie instead? Would this really work? (I honestly don't know.) Is this Hypothetical? In America YES. John found a case in Italy and I found a case in Germany). If this gets to be a common punishment for anti-Semitic crimes then it may no longer be unusual. I could find no other real cases where people convicted of crimes had, as part of their sentence, that they had to read something (though IANAL so there could be some I don't know about).
- If an Occupy Wall Street guy vandalizes a Financial Institution's offices and is forced to read Atlas Shrugged that would be unusual. But is it cruel? (My opinion: YES) How about the Cliff notes? (My opinion: NO) Is this hypothetical? (My opinion: YES.)
- What if a teenage girl was in Juvenile court for cutting off the hair of a 3-year old (against the 3-year old's will) and the Judge agreed to reduce the sentence if the teen's mother cut off the teen's pony tail in court. This would be considered unusual. But is it cruel? Is it hypothetical? No
broken down into its component parts.
So what Logic did the founders use?
Thomas Jefferson knew more math than any of the founding fathers. But alas,
he was off in France when the constitution was written.