A guy in my apartment complex was pulled over on suspicion of DUI. He had the flu at the time was never given a sobriety or BAC test. (He’s also an immigrant from South America, which probably doesn’t help around here.) However, until his hearing before the judge, he had to have an ignition sobriety lock installed on his car which requires him to take a breath test when he starts up and then periodically, or else it slows down and stops.
I’d count that as pretty “creative”, and not something I thought was even done anywhere (unusual). And it gets into “cruel” territory since the guys that install it are lax about the battery quality of the device putting you at a huge risk of being stranded.
(yes, that means I made a new acquaintance and hit it off well enough to drive around with him, blah blah blah)
NOTE: I don’t know US law at all well, I don’t know how the passage is currently interpreted, I just know how I feel about the concept in and of itself.
There’s good reason IMO to ban “cruel and unusual punishment”
But “cruel and unusual” is as worded, very specific. For a punishment to be “cruel and unusual” you must answer yes to both the following:
is the punishment cruel?
is the punishment unusual? (imprisonment can be quite cruel, but it’s common)
If a law was passed stating that from now on a multitude of crimes were to be punished by the flaying of the left foot of the perpetrator; this would be cruel.
It would not, however, be unusual, because it would be being applied to many people convicted of many crimes. This degree of consistency gives at least some deterrent value to the punishment.
If a judge sentenced someone to the flaying of their left foot, with no other changes in our society going on, that would be cruel AND unusual. It would not serve as a deterrent, because people wouldn’t expect to be tried by that specific judge.
English is generally ambiguous on these matters, when one tries to translate it into more precise logical terms. In the US version of this:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
We can read the last clause as “Cruel and unusual punishments shall not be inflicted.” But it is ambiguous in common use whether this outlaws punishments that are both cruel and unusual, or if it outlaws both cruel punishments and unusual punishments.
Historically, the Supreme Court has interpreted merely cruel punishments as violations of the Eighth Amendment (According to Wikipedia) but I’m not sure about ‘unusual’.
Sure, but it’s just case law, and it’s not necessarily the most popular bit of caselaw, either. If you could actually convince the public that creative sentences were desirable, you could probably get the US Supreme Court to suddenly ‘discover’ that cruel and unusual punishment is referring only to, e.g., “disproportionate” punishments or “outrageous treatment that shocks the conscience.”
Currently, the Constitutional prohibition against “cruel and unusual punishment” prevents most U.S. judges from imposing “creative” sentences.
A guy in my apartment complex was pulled over on suspicion of DUI. He had the flu at the time was never given a sobriety or BAC test. (He’s also an immigrant from South America, which probably doesn’t help around here.) However, until his hearing before the judge, he had to have an ignition sobriety lock installed on his car which requires him to take a breath test when he starts up and then periodically, or else it slows down and stops.
I’d count that as pretty “creative”, and not something I thought was even done anywhere (unusual). And it gets into “cruel” territory since the guys that install it are lax about the battery quality of the device putting you at a huge risk of being stranded.
(yes, that means I made a new acquaintance and hit it off well enough to drive around with him, blah blah blah)
NOTE: I don’t know US law at all well, I don’t know how the passage is currently interpreted, I just know how I feel about the concept in and of itself.
There’s good reason IMO to ban “cruel and unusual punishment”
But “cruel and unusual” is as worded, very specific. For a punishment to be “cruel and unusual” you must answer yes to both the following:
is the punishment cruel?
is the punishment unusual? (imprisonment can be quite cruel, but it’s common)
If a law was passed stating that from now on a multitude of crimes were to be punished by the flaying of the left foot of the perpetrator; this would be cruel. It would not, however, be unusual, because it would be being applied to many people convicted of many crimes. This degree of consistency gives at least some deterrent value to the punishment.
If a judge sentenced someone to the flaying of their left foot, with no other changes in our society going on, that would be cruel AND unusual. It would not serve as a deterrent, because people wouldn’t expect to be tried by that specific judge.
I suspect ‘usual’ there meant not “done frequently” but “according to usage or custom”.
English is generally ambiguous on these matters, when one tries to translate it into more precise logical terms. In the US version of this:
We can read the last clause as “Cruel and unusual punishments shall not be inflicted.” But it is ambiguous in common use whether this outlaws punishments that are both cruel and unusual, or if it outlaws both cruel punishments and unusual punishments.
Historically, the Supreme Court has interpreted merely cruel punishments as violations of the Eighth Amendment (According to Wikipedia) but I’m not sure about ‘unusual’.
IANAL.
Sure, but it’s just case law, and it’s not necessarily the most popular bit of caselaw, either. If you could actually convince the public that creative sentences were desirable, you could probably get the US Supreme Court to suddenly ‘discover’ that cruel and unusual punishment is referring only to, e.g., “disproportionate” punishments or “outrageous treatment that shocks the conscience.”