Although there was some confusion as to which branch of government, (state legislature or the court) the inhibition applied, judicial decision-makers at all levels, uniformly interpreted the clause as restricting certain modes of punishment and they generally agreed upon which of them constituted cruel and unusual punishments. Specifically, prohibited were those crimes that had been practiced in England and in colonial America. The death penalty, however was not prohibited nor were the various means of inflicting it, such as shooting, hanging or electrocuting.
Throughout the nineteenth century, litigation over cruel and unusual punishment was heard in various regions around the country. The twentieth century saw increased litigation over the modes of punishment. Punishments of fines and imprisonment were upheld as not being cruel and unusual, per se, along with hanging, electrocuting, lethal gas and finally, sterilization.
When compared to the practices of the English, American punishments, appear mild and almost harmless. In the spirit of humanity, the method by which one is lawfully killed hardly makes any difference at all. The fact that one is being killed ‘lawfully‘ is what poses a question for humanists. The lawful killing of a person as a form of punishment, is inhumane. It was so then in England and is, even more so today in America.