Prohibition of “cruel or unusual punishment” in the Texas Constitution (art. I, § 13)

Dating back to the Constitution of the Republic of Texas (1836), every version of the Texas Constitution has prohibited “cruel or unusual” punishments. See, e.g., Tex. Const. art. I, § 13. This formulation is slightly different than the Eighth Amendment to the U.S. Constitution, which prohibits punishments that are “cruel and unusual.”

The “cruel or unusual” formulation is not uncommon among the states—it had been adopted by five states (Delaware, Maryland, Massachusetts, New Hampshire, and North Carolina) even before the adoption of the Eighth Amendment. However, the published journals and debates from the constitutional conventions in Texas do not shed any light on why Texas adopted the disjunctive formulation (“or”) instead of the conjunctive (“and”).

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