Why Must Punishment Be Unusual as Well as Cruel to Be Unconstitutional?

TitleWhy Must Punishment Be Unusual as Well as Cruel to Be Unconstitutional?
Publication TypeUnpublished
AuthorsHershenov, D

The Eighth Amendment of the United States Constitution dictates that “{}Excessive bail shall not be required, excessive fines imposed, nor cruel and unusual punishments inflicted.”[i] I have often wondered, and perhaps the reader has as well: just what purpose is served by the addition of the word “{}unusual” to the constitutional clause prohibiting cruel punishments? When a legislature enacts or a judge levies a punishment that is much harsher than what the norm is for such an offense, this unusual punishment is often taken to be unconstitutional. But while it is certainly unusual to bestow a life sentence without parole upon a petty thief, is not this excessive punishment cruel and thus wouldn’{}t a ban of just cruel punishments suffice? If “{}cruel” in a constitutional sense means something like “{}unjustifiably harsh,” why would a punishment need to have any other property to be unconstitutional? Of course, there are punishments that are unjust but not cruel. One such case would occur when a judge gives a guilty friend an unusually light sentence. But the word “{}unusual” could not have been added to render such lenient sentences unconstitutional for the crucial phrase of the Eighth Amendment is a conjunction and not a disjunction. It does not prohibit cruel or unusual punishments but cruel and unusual punishments.