Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
This features prominently in arguments against the constitutionality of capital punishment. But I think one little word floors those arguments: “and”.
There are two ways of reading the amendment: (a) that it prohibits punishments that are cruel and punishments that are unusual; or (b) that it prohibits punishments that are both cruel and unusual at once.
The death sentence is not, in fact, unusual. So the constitutional abolitionists’ case depends on interpretation (a). Interpretation (b) might perhaps be used to rule the original introduction of capital punishment unconstitutional, but that wouldn’t affect the fait accompli that it now has become usual, even if it shouldn’t have.
Two considerations tell against (a).
First, the form of the amendment is ‘X shall not be done, nor Y done, nor Z done’. The writers clearly knew how to express disjunctions. They could easily have written ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted, nor unusual punishments inflicted’. But they didn’t. They lumped “cruel and unusual” in together as a single category of punishment.
Second, if punishments that are unusual (but not cruel) are forbidden, then there could never be innovation in sentencing. This seems a perverse interpretation. Therefore it seems equally perverse that punishments that are cruel (but not unusual) would be forbidden.
(NB: I am not an American constitutional scholar. I am, however, a blogger with a bit of time suddenly on his hands, and I am therefore amply qualified to talk on such issues.)