Does "cruel and unusual" always go together? And what does it really mean, anyway.

[DaveinJapan]

I am just starting up this topic to hear from some folks about their opinions on what "cruel and unusual punishment" really means, and how they think SCOTUS and the judicial system should be viewing this stuff. We have taken a bizarre and frankly worrisome turn lately, ever since the issue of torture arose, and hearing from such wingnuts as Scalia on this issue is as enlightening as it is disturbing (death is not "cruel" unless you don't believe in God, to paraphrase one of his bizarre notions, another was that torture isn't "punishment" and thus doesn't qualify).

Enough about that jackass though, I don't want this to be all about what the right wing thinks (I have enough bad dreams as it is!).

What I'm really interested in hearing about though, is first of all legally speaking does "cruel" AND "unusual" necessarily have to go together in order to be valid? In other words, if Congress (hypothetically) passed a law that said all convicted felons are to have their limbs amputated as a condition of their punishment, would that fall under "cruel and unusual", even though if it were the same for all felons it would no longer be unusual? I doubt even the likes of Cheney or Scalia would be dumb enough to admit that such a thing would, on the face of it, be cruel.

And, how do we define such things as cruelty using todays standards of decency, anyway. It's so random, when you think about it.

For the record, the reason I was motivated to start up this conversation was due to the SuperMax topic, where one guy kept saying "they deserve what they get, they asked for it by committing heinous crimes" (yes, definitely paraphrasing and my apologies if the intent of the comments was somehow missed...I don't think I missed the point, though.

In terms of harsh treatment, I have no big problem with it in maximum security prisons per se. I would be opposed to restricting food as a punishment for inmates, for example, but I have no problem with their diet being bland and plain as long as they get a nutritionally balanced diet appropriate to their sex and size (aka, no dessert bars is cool with me). And expand that as you will, for all the conditions of the imprisonment...it should NOT be a lot of fun to be in prison. But, no they should not be subjected to beatings, or rape, or any other inhumane stuff.

I guess the line for me is, if you wouldn't do it to an animal (even a rabid and dangerous animal) without provoking outrage from many quarters, how they could you do the same thing to any human being?

And again, I'm hoping to learn here so I don't claim to be an expert nor do I expect that my opinions won't be shredded by some far more knowledgeable about the prison system in the U.S.A. than I.

[aquart]

1. Tying a man to four horses and saying "Giddyap!" is cruel and unusual.

Even shocked the Elizabethans and their usual stuff was quite nasty.

[DrDan]

2. assaulting a spouse is cruel, but unfortunately, not unusual

[customerserviceguy]

3. When the Founding Fathers wrote that phrase

They surely had in mind the various things used in the Catholic vs. Protestant fight in Europe. Go to Wikipedia, and look up the word 'torture', and you'll see the most depraved things done in the name of making sure people saw the light about which version of a deity to follow.

Some of those things followed across the Atlantic, and were used for a time among various groups of religious fanatics who settled here. A new nation, founded upon the idea of liberty, had no need of such tactics. The Fifth Amendment reflects that sentiment, too, in that cruel means were used to extract 'confessions' from innocent persons.

[DaveinJapan]

4. Thanks for the replies!

I'm wondering more, though, what does it mean TODAY in the sense of what society can and can not do with those in the prison system now (opinions, commentary, legal theories, all thoughts are welcomed!)...

I appreciate the historical notions, but I'm also interested in what that means in todays world.

[ThomCat]

5. Things that are done routinely to entire classes of people

have never been held accountable as cruel and unusual as far as I know, no matter how cruel. So I think it has to be both: cruel + unusual.

That mean it has to be cruel, but in a way that shocks everyone into being disgusted. That is very hard to do.

I have no doubt that our criminal justice system is very good at making brutal cruelty routine, so it the violence becomes acceptable, and we become desensitized to the violence being done, as long as it is being done to others.

Even Torture is happening in our prisons routinely today won't stop even though it has been reported several times in congressional testimony. The efforts to change and oppose it are too limited to gain traction, despite calls for reforms coming even from senators.

The violence just has too much social acceptance and inertia. As long as it is hidden behind high walls and only happening to convicts, people refuse to care. Too many people like the idea of punitive violence, especially excessive punitive violence, as long as they don't have to see it.

[Statistical]

6. Unusual indicates punishment should be standardized.

If 99% of robbers get 3 years, and 1% get life in prison for the same crime that would be unusual.

The phrase indicates it should punishment should be standardized and not be cruel.