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Bruce In Bangkok

On Tue, 10 Mar 2009 09:15:34 -0700, wrote:

Bruce In Bangkok wrote:
On Mon, 9 Mar 2009 19:05:49 -0600, "KLC Lewis"
wrote:
Let's look at it this way:

The prohibition is against "cruel and unusual punishment." It can be either
cruel OR unusual, but not both. As long as we do it all the time, it's not
unusual at all, and so therefore we can be as cruel as we like.

Winning hearts and minds, one at a time.

I suggest that the meaning is cruel punishments and also unusual
punishments.
Cheers,

Bruce
(bruceinbangkokatgmaildotcom)

Well, for the sake of argument, let's assume you are correct (though
doubtful) that the punishment must be *both* cruel and unusual to be
covered by the 8th amendment. "Torture" is illegal in the US, and in
international law. By definition, "torture" is cruel, and since it is
outlawed worldwide in international law and treaty, it cannot, by
definition be considered "usual", and therefore violates the 8th as you
interpret it. Not to mention violating due process (14th amendment) in
that the "torture" is applied to individuals who have not been tried for
a crime.

You can make an argument about whether any given action *constitutes*
torture, but you cannot make a rational argument that there are
"acceptable forms of torture" within any legal framework.

Keith

As the term, which was first used in England in 1689, was originally
used as a ban for punishments that were considered cruel or unusual.
Examples - flogging around the fleet which actually constituted being
flogged to death, being torn apart by either the rack or wheel,
hanging, drawing and quartering, and so on.

I believe that the first U.S. definition of the term was
In Wilkerson v. Utah, 99 U.S. 130 (1878), when the Supreme Court
commented that drawing and quartering, public dissecting, burning
alive, or disemboweling would constitute cruel and unusual punishment
regardless of the crime.

The reference to torture, in U.S. law was, I believe, added at some
later date although I do not have a specific date.

Cheers,

Bruce
(bruceinbangkokatgmaildotcom)