In Graham v. Florida, plaintiff Graham and his many supporters argued before the Supreme Court that a punishment of life without parole (“L-WOP”) is “cruel and unusual punishment” (which is prohibited by the 8th Amendment) when applied to a minor. To prove that L-WOP is “cruel” they argued that it inhumanely prevents imprisoned minors from hope of rehabilitation. To prove that L-WOP is “unusual” they cited statistics of the rarity of the punishment.

L-WOP is possibly cruel . . .

As someone who studies the English language and its evolution, I’m not surprised that 21st-century lawyers would interpret the 8th Amendment’s prohibition of “cruel and unusual punishment” in this way. “Cruel” now means “inhumane,” and 21st-century standards of human decency demand that punishments of minors not stunt or deform them, mentally or physically. (Graham’s lawyers pointed out that in prison, L-WOP convicts do not have access to education or vocational training, thus stunting the development of minors in the system.)

L-WOP is possibly unusual. . .

I was a bit surprised, though, when Graham’s lawyers equated “unusual” with “rare.” More often today (“usually”) when English speakers use “unusual,” they equate it with “strange.” I suppose Graham et al. defined the term this way because rarity is something that can be precisely quantified.

Unfortunately, “rarity” does not mean “unusualness” today. If rare punishments were prohibited under the Constitution, then capital punishment would be prohibited, because it is the rarest of all punishments in our system.

But is L-WOP “cruel AND unusual”?

You might wonder why Graham’s lawyers bothered to try to prove that L-WOP for minors is BOTH cruel and unusual. Why didn’t they just settle for its being cruel? Any punishment that is clearly cruel would certainly be prohibited. For example, whether rare or not, no court would impose a cruel punishment.

I believe they interpreted the 8th Amendment to mean that in order for a punishment to be prohibited, it must be both cruel and unusual, not merely cruel or unusual.

What did the 8th Amendments’ authors mean by “cruel and unusual punishment”?

I’ve read a lot of 18th century documents (and earlier). The English language has changed a great deal since the 8th Amendment was written, both semantically and syntactically.

For this reason, I have long thought the 8th Amendment was not written to mean that a punishment must be both cruel and unusual, but only that it must be either cruel or unusual. In addition, I believe that it was not written to mean that a punishment must be weird or even rare in order to be prohibited, only that it must be “not usual.” And “not usual” meant something very different from what it does today.

Only the word “cruel” meant essentially the same thing in 1785 as it does today. In the 18th century, people had learned that the standard of decency evolves. They would not have been surprised to discover that the 8th Amendment’s “cruel” might not be the future’s “cruel.”

AND

I’m convinced the syntax of the phrase “cruel and unusual punishment” is the 18th-century equivalent of “cruel or unusual punishment.” In those days the phrase would have been read as an ellipsis: “cruel [punishment] and unusual punishment.” “Cruel” and “unusual” are clearly both adjectives of “punishment,” but the conjunction “and” did not then have the effect it does today of making the two adjectives apposite. In other words, today “and” is used when it is necessary to stress that something has two distinctly different attributes.

In the 18th century it was less common to use “or” as a conjunction between two adjectives. For example, an 18th century writer would not say, “rayon or wool socks,” but rather “rayon and wool socks.” There would be no confusion that the writer was describing rayon-wool-blend socks, because such a fabric was inconceivable in those days. The same is true of “cruel and unusual punishment,” because no one would think the writer meant a punishment that is both cruel and unusual.

“Or” was reserved for diametrically opposed concepts. “And” was used for merely different concepts. No 18th century reader of the 8th Amendment would have taken it to mean that it prohibited only punishments that were both cruel and unusual. That would have been absurd, because that would have permitted cruel punishments, as well as unusual ones.

So, in the 18th century, I believe a lawyer would have argued only that L-WOP for minors was cruel. He would not have felt he had to prove it both cruel and unusual.

UNUSUAL

I also believe that the authors of the 8th Amendment intended “unusual punishment” to mean something like a “bill of attainder,” not a strange or even rare punishment. “Unusual” in the 18th century meant “not usual” or something close to “peculiar” to an individual.

However, “unusual” is so weird I need to write a separate blog post on it.