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 seven judges of the Californian Supreme Court to be "impermissibly cruel" under the California Constitution which prohibited cruel or unusual punishment. Also,

"It degrades and dehumanizes all who participate in its processes. It is unnecessary to any legitimate goal of the state and is incompatible with the dignity of man and the judicial process."

In the Massachusetts decision in District Attorney for the Suffolk District v. Watson, where the Constitution of the State of Massachusetts prohibited cruel or unusual punishment, the death sentence was also held, by six of the seven judges, to be impermissibly cruel.

In both cases the disjunctive effect of "or" was referred to as enabling the Courts to declare capital punishment unconstitutional even if it was not "unusual". Under our Constitution it will not meet the requirements of section 11(2) if it is cruel, or inhuman, or degrading.

Proportionality is an ingredient to be taken into account in deciding whether a penalty is cruel, inhuman or degrading. No Court would today uphold the constitutionality of a