Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

— the 8th Amendment to the Constitution of the United States

For many people, the "and" in "cruel and unusual punishment" is read as if it were an "or" — if the punishment is either cruel OR unusual, it fails to pass Constitutional muster. Even the Supreme Court has gone down this path in the past... leaving us with the annual spectacle of Charles Manson's parole hearings.

But the more I consider the 8th Amendment, the more I think the Founding Fathers intended the expression "cruel and unusual punishment" to be used exactly as written, in Boolean fashion; that is, a punishment must be both cruel AND unusual to be Constitutionally prohibited.

In Boolean logic, the AND means that both the expressions to be tested ("cruel", "unusual") must be true for the whole expression to evaluate as true; if one expression is true and the other false, the entire expression evaluates as false. This would give us four ways to evaluate whether a punishment for a crime meets my 8th Amendment test:

Would it be unusual to sentence a petty shoplifter to have to wear a sign on his back proclaiming his status? Perhaps. But cruel? No.

Now, I said all that to say this: despite the qualms of a sizeable number of people in this country, I never have had a problem with the death penalty.

Is it cruel? Perhaps — it is certainly extreme. It would depend on the method used to carry out the execution, I suppose... but we don't have a history of putting people into shredders for their crimes. The needle is alleged to be humane, but I don't see how it is any more humane than, say, a properly administered hanging or firing squad. I will grant that it's not as messy....

But is it unusual? The principle of "letting the punishment fit the crime" emphatically says no. That "no" makes it an acceptable punishment, in my opinion.

Indeed, I would go so far as to suggest that capital punishment ought to be extended to crimes other than intentional homicide. Crimes which ruin lives ought to be liable to the same punishment as crimes which end lives. Violent rape and child molestation come immediately to mind. I suspect a large percentage of people might agree with me on those, and perhaps on others as well.

I'm partial to the idea of treating massive cyber-vandalism the same way we treat terrorism, for instance. Virus writers can all die now, as far as I am concerned.

If you steal a little old lady's life savings, forcing her into poverty for the remainder of her life, I might sponsor the necktie party myself. Horse thieves used to be hanged in this country, after all.

I wouldn't object to a few prosecutions for treason, either.

Or am I totally off-base here?

[Welcome, Wizbang readers!]

Posted by Russ at 07:04 PM, February 25, 2005 in Miscellany