October 21, 2013
In response to Kevin: A clarification
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.
As to the cited comments, a recent book -- "A Wild Justice: The Death and Resurrection of Capital Punishment in America" by Evan J. Mandery -- provides a good analysis of the assumptions of the justices of the Furnam Court.
Also, the post referenced judicial review. I'm not sure of Prof. Perry's full argument, but my reading of his analysis would suggest that the general principles apply both to the courts and what legislative action should use as a guide.
Posted by: Joe | Oct 23, 2013 12:43:46 PM
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