Eighth Amendment to the United States Constitution

From Academic Kids

The Eighth Amendment to the United States Constitution, which is part of the U.S. Bill of Rights, protects against excessive bail or fines, as well as against cruel and unusual punishment. The phrases employed are taken from the English Bill of Rights.



Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Excessive bail

In England, sheriffs originally determined whether or not to grant bail to criminal suspects. Since they tended to exploit their power, Parliament passed a statute in 1275 whereby bailable and non-bailable offenses were defined. The King's judges often subverted the provisions of the law. It was held that an individual may be held without bail upon the Sovereign's command. Eventually, the Petition of Right of 1628 argued that the King did not have such authority. Later, technicalities in the law were exploited to keep the accused imprisoned without bail even where the offenses were bailable; such loopholes were for the most part closed by the Habeas Corpus Act 1677. Thereafter, judges were compelled to set bail, but they often required impracticable amounts. Finally, the English Bill of Rights (1689) held that "excessive bail ought not to be required." Nevertheless, the Bill did not abolish the distinction between bailable and non-bailable offenses. Thus, the Eighth Amendment has been interpreted to mean that bail may be denied where the charges are sufficiently serious. The Supreme Court has also permitted "preventive" detention without bail. It held in United States v. Salerno (1987), the Supreme Court held that the only limitation imposed by the bail clause is that "the government's proposed conditions of release or detention not be 'excessive' in light of the perceived evil."

Excessive fines

The protection against excessive fines applies only in respect of the government. Punitive damages awarded in civil trials are not governed by the clause, as the Supreme Court held in Browning-Ferris Industries v. Kelco Disposal, Inc. (1989). The Supreme Court has held that the wealth of the defendant need not be considered when deciding the excessiveness of a fine; neither has the Court ever explicitly set a maximum figure for fines.

Cruel and unusual punishments

The Eighth Amendment forbids some punishments entirely, and forbids some punishments that are excessive when compared to the crime.

In Furman v. Georgia (1972), Justice Brennan wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."

  • The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity", especially torture.
  • "A severe punishment that is obviously inflicted in wholly arbitrary fashion".
  • "A severe punishment that is clearly and totally rejected throughout society".
  • "A severe punishment that is patently unnecessary".

Continuing, he wrote that he expected that no state would pass a law obviously violating any one of these principles, so court decisions regarding the Eighth Amendment would involve a "cumulative" analysis of the implication of each of the four principles.

Punishments entirely forbidden

In Wilkerson v. Utah (1878), the Supreme Court commented that drawing and quartering, public dissecting, burning alive and disembowelling would constitute cruel and unusual punishment.

Torture is prohibited by the Eighth Amendment.

The Court held in Trop v. Dulles (1958) that punishing a natural born citizen for a crime by taking away his citizenship is unconstitutionally excessive, being "more primitive than torture" because it involved the "total destruction of the individual's status in organized society".

Punishments forbidden when excessive

Weems v. United States (1910) held that a punishment is cruel and unusual if it is excessive. (The Weems case dealt with a sentence that mandated "hard and painful labor", shackling for the duration of incarceration, and permanent civil disabilities.)

In Robinson v. California (1962), the Court decided, 8-0, that a California law authorizing a 90-day jail sentence for "be[ing] addicted to the use of narcotics" violated the Eighth Amendment, as narcotics addiction "is apparently an illness", and California was attempting to punish people based on the state of this illness, rather than for any specific act.

In Coker v. Georgia (1977), the Court declared that the death penalty was unconstitutionally excessive for rape of an adult female and, by implication, for any crime other than murder.

Traditionally, the length of a prison sentence was not subject to scrutiny under the Eighth Amendment, regardless of the crime for which the sentence was imposed. It was not until the case of Solem v. Helm (1983) that the Supreme Court held that incarceration, standing alone, could constitute cruel and unusual punishment if it were "disproportionate" in duration with respect to the offense. The Court outlined three factors that were to be considered in determining if the sentence is excessive: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." The Court held that under the circumstances of the case before it and the factors to be considered, a sentence of life imprisonment without parole for cashing a $100 check on a closed account was cruel and unusual punishment.

Capital Punishment

Aside from the period 1967 to 1976, when the death penalty was effectively suspended, the Supreme Court's consistent ruling has been that capital punishment itself is not a violation of the Eighth Amendment, but that many applications have been. The Court declared the execution of the mentally retarded to be unconstitutionally cruel and unusual in 2002, and in 2005 it declared unconstitutionally cruel and unusual the death penalty for people who were under age 18 at the time of their crime.

The constitutionality of capital punishment itself is often challenged, usually on the grounds that it allegedly violates the Eighth Amendment. The first of these challenges to reach the Supreme Court was Furman v. Georgia (1972), when the Supreme Court overturned the death sentences of Furman as well as two defendants in separate cases against Georgia and Texas, in a 5-4 decision. Of the five justices voting to overturn the death penalty cases, two found capital punishment itself to be unconstitutionally cruel and unusual; and three found that the death penalty was meted out in a random and capricious fashion, discriminating against blacks and the poor. This, they said, made the application of the death penalty cruel and unusual.

States with capital punishment laws rushed to rewrite them in order to address the Supreme Court's findings, and in Gregg v. Georgia (1976), the Court found, in a 7-2 ruling, that Georgia's new death penalty laws passed Eighth Amendment scrutiny: a bifurcated trial in which guilt and sentence were determined separately; and "there must be specific jury findings as to the circumstances of the crime or the character of the defendant, and the State Supreme Court thereafter reviews the comparability of each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate". Executions resumed in 1977.

Some states have passed laws imposing mandatory death penalties in certain cases; the Supreme Court has found these laws to be unconstitutional under the Eighth Amendment. Other statutes specifying factors for courts to use in making their decisions have been upheld. Some have not: in Godfrey v. Georgia (1980), the Supreme Court overturned a sentence based upon a finding that a murder was "outrageously or wantonly vile, horrible, and inhuman," as it deemed that any murder may be reasonably characterized in this manner. Similarly, in Maynard v. Cartwright (1988), the Court found that an "especially heinous, atrocious or cruel" standard was too vague. The Court has further held that capital punishment may only be imposed if the defendant kills, or attempts to kill, the victim.

See also: Capital punishment in the United States


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