[iron81]

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Why does it matter whether it's murder or not with regard to the death penalty being cruel or unusual? Obviously, the founders did not intend the Eighth Amendment to prevent states from executing people.

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I don't particulary want to research this, but I think the SC has kind of morphed the "Cruel and Unusual" clause and the "Excessive bail and fines" clause into "Excessive punishment".

If you're making a federalism argument, most of the 8th has definately been incorporated and therefore applies to the states. However, the excessive fines provision was only incorporated in 2001 and the excessive bail provision has not been incorporated, so that portion of the 8th does not apply to states.