Discrimination and Justice



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.)


Death Penalty Physical Pain Physical Punishment Federal Court Life Imprisonment 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.


Unable to display preview. Download preview PDF.

Unable to display preview. Download preview PDF.


  1. 1.
    Trop v. Dulles (1957), 356 U.S. 86.Google Scholar
  2. 2.
    Pugh v. Locke,406 F. Supp. 318; see also Newman v. Alabama (1976), 559 F. Supp. 2d. Certiorari denied, 98 U.S. 3057.Google Scholar
  3. 3.
    Parigiano v. Garrihy (1976), 443 F. Supp. 956.Google Scholar
  4. 4.
    Ramos v. Lamn (1979), 485 F. Supp. 122. Affirmed in part and remanded in part, 10th Circuit Court of Appeals (1980), 639 F. Supp. 2d. Certiorari denied, 101 U.S. 1259.Google Scholar
  5. 5.
    Ruiz v. Estelle (1981), 503 F. Supp. 1265. Execution stayed, 5th Circuit Court of Appeals, 650 F. Supp. 2d, 555.Google Scholar
  6. 1.
    Weems v. U.S.,217 U.S. 349.Google Scholar
  7. 2.
    Virgina Woolf, The Common Reader ( New York: Harcourt, Brace, 1925 ), p. 83.Google Scholar
  8. 3.
    Alexis de Tocqueville, Democracy in America, vol. 2, trans. Phillips Bradley (New York: Knopf, 1945 ), pp. 165–166.Google Scholar
  9. 4.
    I include the Argentine military in the same select class as the KGB of the Soviet Union and the present regime in South Africa on the authority of Jacobo Timerman, who survived their maltreatment. See his Prisoner without a Name, Cell without a Number ( New York: Knopf, 1982 ).Google Scholar
  10. 5.
    For a Texan’s account of the vagaries of Texan statutory draftsmanship, see Charles L. Black, Jr., Capital Punishment: The Inevitability of Caprice and Mistake, 2nd ed., augmented (New York and London: W. W. Norton, 1981 ), pp. 114–121.Google Scholar

Copyright information

© Ernest van den Haag and John P. Conrad 1983

Authors and Affiliations

There are no affiliations available

Personalised recommendations