Abstract
Consider now the phrase used in the Eighth Amendment itself. It prohibits cruel and unusual punishment, not cruel or unusual punishment. Therefore, a punishment must be cruel and unusual to be unconstitutional. The framers meant to outlaw unusual punishment, if cruel. But not cruel punishment, if usual. A punishment has to be new (unusual) as well as cruel to be unconstitutional. The death penalty hardly qualifies on that score. For whether cruel or not, the death penalty is not “unusual” in this Eighth Amendment sense.* (There is another sense, of which anon.)
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