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Cruel and Unusual Punishments

Eric Engle

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
– U.S. Constitution, Ammendment VIII


I wish here to expose a draconian law – which however illustrates the pitfalls of ambigous language and thus presents a perverse puzzle. It is of course the case that in the United States constitution we are assured that "No cruel and unusual punishment" shall be inflicted. Now this phrase is unfortunately ambiguous. The fact that it has been interpreted in a draconian rather than compassionate exegesis indicates 1) the pertinence of logical analysis to law 2) a critique of an injust 'law'.

As a logician knows, the word 'and' is ambiguous. In english "no cruel and unusual punishments" could be interpreted to mean:

'Neither cruel nor unusual punishments are to be tolerated'. This is what I would call the compassionate or if you prefer 'liberal' interpretation of the constitutional prohibition against cruel and unusual punishments. There is a canon of construction which by the way supports that interpretation, namely that punishments and crimes are to be interpreted restrictively.(1)

Unfortunately this is not the interpretation given by the courts. (2)

Another semantically possible interpretation of the statement "No cruel and unusual punishments" would be ‘No punishment which is both cruel and unusal shall be tolerated.’ The problem is, that implies the negation: that punishments which are either cruel, but not unusual or which are unusual, but not cruel are permitted!

The ambiguity of course arises out of the term 'and'. 'And' may state inclusively 'both...and' - both cruel, and unusual punishments are illegal. It may however be exclusive. That is in terms of precedence the functor 'and' is evaluated before the functor 'no'. This question of the order of precedence determines whether torture is allowed if it is traditional, and whether electrocution is permitted, for though unusual it is not, at least in the eyes of the court, particularly cruel. The author of course contests the legal 'fact' that electrocution is not cruel. Electrocution is most certainly cruel; though this in part depends on what we mean by cruel - is it “cruel” to inflict needless pain (objective cruelty) or is “cruelty” the relish felt by zealous state officials as a person is cooked to death, defecates, urinates, and bleeds from their orifices? Or is the cruelty the pain and suffering of the criminal?


The supposed ambiguity of the statement 'no cruel and unusual punishments' can be exegetically clarified if we consider that the constitution is a statement not of what is prohibited but of what is permitted. Only powers explicitly enumerated are granted to the federal government. All other powers are reserved in the federated states or the people.Hence a possible implicit permission of either cruel or unusual punishments (but not both at once) disappears by a rule of interpretation - at least at the federal level, but also att the state level via the XIV° ammendment.

Well, what I have stated here is logically true. Nevertheless the American government continues to kill its own citizens. There is certainly a moral principle that no injust law is valid with, in my opinion, a corresponding expression in law. However to transform that position of natural justice into positive law requires recourse to the natural law. This demonstrates a limit upon logic: positive law (force) can always oppose itself to logic - at least until such time that the use of fforce generates its own backlash.(3)



(1) Thus in criminal law, "strict construction" means that any ambiguity should be resolved in favor of the defendant. Thomas Eimermann, Analyzing Enacted Law (2)But see, e.g. Owens. v. Mass., 323 Or. 430, 918 P.2d 808 (1996)

(2) On this point the U.S. Supreme Court held that while a punishment was cruel it was not also unusual. Harmelin v. Michigan, 501 U.S. 957 (1991)

(3) Regarding the framers intent “It is clear from some of the complaints about the absence of a bill of rights including a guarantee against cruel and unusual punishments in the ratifying conventions that tortures and barbarous punishments were much on the minds of the complainants,”

citing: 2 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Constitution 111 (2d ed. 1836); 3 id. at 447-52.

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