Monday, October 21, 2013
I hope I have not (but perhaps I have) misunderstood Kevin's comments. My reading of the comments leads me to make this clarifcation:
My position is not that whether a punishment is "unusual" is a criterion (much less the criterion) of whether the punishment is "cruel". It is easy to imagine punishments that are "unusual" but not "cruel".
Rather, my position is that whether a punishment is "unusual" is probative of whether the judgment--the possibly controversial judgment--that a punishment is "cruel"--a judgment reached entirely without regard to whether the punishment is "unusual"--is a sound judgment.