THE EIGHTH AMENDMENT
“The sword of the law should never fall on but those whose guilt is so apparent as to be pronounced by their friends as well as foes.”
Thomas Jefferson, 1801.
In my previous essay I charged everyone with examining their core beliefs. One of those was whether our prime objective should be to protect citizens from dangers without and within, or to protect the powerless from the powerful.
I imagine that most people, as most Americans would, find their own opinions containing pieces of both sides. In this essay I want to examine an illustration of this conflict of opinions.
The Eighth Amendment to the U.S. Constitution has only 16 words:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
As with many of the clauses within the U.S. Constitution, after over 200 years, constant “erosion by interpretation” and evolving regulatory restrictions, what was once clear and simple has become cloudy and complicated.
This particular amendment is based closely on the Bill of Rights in English law. Passed in 1689 several of the clauses served as models for the U.S. Bill of Rights. In this case the English version of our Eighth Amendment reads, “declare…That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”
The Framers virtually copied that language into our Constitution.
UNDERSTANDING THE TEXT
The first thing we need to do when we look at anything in the Constitution is the punctuation. In this case there are commas after “required” and “fines imposed”. So, we need to read this amendment as Excessive Bail should not be required. Also, Excessive Fines should not be imposed. And finally Cruel AND Unusual punishments may not be inflicted. It is possible, therefore, to read this amendment and understand that unusual punishment may be imposed as long as it is not cruel, and cruel punishment may be imposed as long as it is not unusual.
As an example, consider the Ohio Judge that sentenced a man convicted of intentionally tipping a porta-potty to a weekend scooping up manure at a local fair, or the convicted thief who stole from the Salvation Army sentenced to spend consecutive Christmas days in jail, or those convicted of DUI being sentenced to spend time doing janitorial work in morgues to witness the fatal consequences of drunk driving. These “creative” sentences are definitely unusual but fail to rise to the level of BOTH Unusual AND Cruel.
On the other hand, it cannot be argued that the Death Penalty is not Cruel. It is the cruelest penalty that can be imposed. However, in our society it is not considered “unusual”, and therefore, does not fall within the strictures of the Eighth Amendment.
Another aspect of what the Framers considered Cruel and Unusual is punishment that may be considered acceptable for some crimes, but significantly too harsh for others. For example, it may be acceptable to impose a life sentence for murder, but unacceptable to apply that same penalty for public drunkenness.
"An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret and to misapply even the best of laws." Thomas Paine.
Today, these restrictions are usually judged according to the judicially imposed “evolving standards of decency that mark the progress of a maturing society.” This phase was coined by Chief Justice Earl Warren in 1958. The concept relies on the thought that an evolving society will reinterpret what punishments are excessive, or cruel and unusual. The underlying rationale implies that the U.S. Constitution is a “living document” in which the original intent of the Framers changes as the society matures.
This is in direct contrast to the current Court’s focus on originalism. We can only assume that the historical precedents pertaining to this Amendment are currently being reexamined and that the living constitution approach to evolving standards of decency are on shaky ground. A turn towards originalism could reinstate some of the punishments available at the time of the Founding, some of which we might consider “barbaric” today. These changes could include the execution of juveniles and intellectually disabled people.
A fair discussion of the Eighth Amendment, therefore, requires an understanding of what the Framers had in mind when they wrote it, and what historical precedents dating back to English Law written 100 years before, influenced their thoughts.
Here are some examples of punishments that were common to the Framers, that we might find offensive today:
Public Shaming Devices.
Things like the stocks (locking a person by their ankles) and the pillory (locking people by their neck and wrists). Both punishments, generally applied in town squares were designed to punish and shame people. (Although we might celebrate such a punishment for certain public officials, as a society we have rejected this approach.)
Corporal Punishment.
Public whipping and flogging.
Mutilation.
Branding on the forehead or hands, slitting noses, or severing ears.
Excessive Capital Crimes.
Capital punishment (execution) for crimes including poaching, pickpocketing, or stealing.
Bills of Attainder.
Governmental laws passed to declare specific individuals guilty of crimes without a judicial trial.
What should the purpose of punishment be? Should laws be written to protect society from the dangers of wrongdoers, or should punishment laws be tempered to protect the less powerful from the malevolent intensions of the powerful? As a society it seems we have moved towards the former, incarcerating large numbers of people. This is supported by the fact that, as a percentage of the total population, there are only four countries in the world who have incarcerated a larger percentage of their population, El Salvador, Cuba, Rwanda, and Turkmenistan. While the rate in the U.S. is 542 per 100,000, in Russia the number is only 300, and in China it is only 119. Empirically, we, as a society, have chosen incarceration as a policy, not an exception.
Incarceration rates in this country have increased from 250 in 1960, to over 540 today.
On the other hand, there is considerable written evidence that the Framers felt more strongly that punishment should be tempered by mercy, and that we must be careful to preserve the concept of presumed innocence.
Let’s take a closer look.
WHAT IS BAIL?
To understand the Eighth Amendment, it is necessary to understand what the Framers understood the words in the Amendment to mean.
For the Framers, “bail” was understood to be a mechanism that would allow courts to release an individual charged with a crime before trial, protecting the presumption of innocence, while providing an incentive to ensure that they will appear at the time of trial. The Framers believed that bail should be used strictly to prevent flight, not to preemptively punish or detain individuals based on a “perceived” danger to the community. That is why they wrote the Eighth Amendment with the presumption that bail should be available for ALL criminal charges. This was modified by Congress 18 years later, in 1789, to restrict bail in cases where Capital punishment (death) could be imposed.
Bail was seen as part and parcel to the assumption of innocence and the right for a defendant to prepare a defense from their own home and without incumbrances, it was not seen as a way to sequester accused individuals from society.
Excessive bail was specifically prohibited because it was seen as a way for the government to impose punishment on an individual prior to any trial and that this flies in the face of the presumption of innocence. They also wanted to prevent political actors from setting impossibly high bail to keep perceived adversaries locked away, unable to spearhead any opposition, and before they were ever convicted of a crime.
Today, these assumptions are under attack. Across the country, more than 400,000 people, presumed innocent before trial, are being detained solely because they are unable to afford the cash bail required for release. That amounts to over 60% of the typical daily jail population.
The median bail bond for a felony is $10,000. This represents months of income for the typically detained defendant, and with the median American family possessing a total of only $8,000 across all transaction accounts including checking, savings, money market, and brokerage cash balances, for most, bail is a practical impossibility.
Maybe the most famous example of this problem is Kalief Browder who, accused of stealing a backpack when he was16-years old, was held in Rikers Island for three years, including 700 days in solitary confinement (over 60% of his total incarceration), because his family could not afford the $3,000 to post bail. Prosecutors ultimately dismissed his case, and two years later Kalief committed suicide by hanging himself.
Black individuals represent 43% of pretrial detained people.
There is no “free lunch” so, when we, as a society, detain people because they cannot raise bail, there is still a cost to all of us. The economic cost to taxpayers is estimated to be almost $15 billion annually to incarcerate people unable to raise bail.
You may ask, “but these individuals don’t have to raise the entire bail; bail bondsmen will take only 10-15% as a fee for providing the entire amount.” The problem with that is that even that 10% is difficult for many people to raise, they don’t have sufficient collateral to guarantee the remainder of the debt, and their poor creditworthiness precludes the underwriter from covering their bail. The net result is that poor people often are excluded from using bail bondsmen, cannot raise bail, and remain in jail awaiting their trial, which may come months or even years later. Their financial issues are then amplified as incarcerated people lose their ability to earn money in jobs or lose those jobs completely because they are unavailable to work.
Interestingly, only 2 countries in the world allow for-profit private bail companies, the U.S. and the Philippines.
It does seem to me that the Framers’ intent to use bail as an incentive to prohibit flight and matched to the economic circumstances of the presumed innocent individual has been discarded. Certainly, there is a disparity between the “haves” and the “have-less” in the ability to raise bail and obtain their freedom.
EXCESSIVE FINES
Once again, we need to understand what the Framers understood their words to mean when prohibiting “excessive fines”.
Versed in English Law, they sought to protect individuals from government policies that were designed to strip defendants accused of certain crimes by creating financial penalties so disproportionate to the crimes that their purpose was clearly to strip those defendants of their livelihood or ability to financially survive.
The basis in the English Bill of Rights provided that fines need to be proportionate to the severity or gravity of the crime. Further, the law reflected historical reasoning dating back to the Magna Carta of 1215 mandating that fines could not deprive a defendant of their means of making a living. For example, fines for tradesmen were restricted to amounts that would not require the liquidation of their merchandise, ensuring that the punishment would not force the individual into destitution.
One can imagine that the Framers would have been opposed to a government that files weak legal actions against citizens with the intention of forcing financial destruction on the defendant because of his/her costs of providing a defense.
Finally, the Framers wanted to protect the citizenry from a government who would use the fine system to fill their own treasuries through cash collections and civilian asset forfeitures.
TRENDS TODAY
The intent of the Framers in including, effectively, the exact language of English law from a hundred years earlier, tracing a legal continuum, to protect the presumed innocent from an overactive government or court system may well be under assault today. There are several court cases in the system challenging the current interpretation of the Eighth Amendment.
There are cases challenging the methods of execution for Capital crimes.
There are cases challenging state standards for determining intellectual disability.
There are cases attempting to claim that child rape should become a Capital Crime.
The Supreme Court is hearing a case that allows Federal inmates to sue federal officials over medical care and overcrowding.
There are cases challenging what is meant by the Excessive Fines Clause; for example, whether massive monetary penalties in the False Claims Act violate the Amendment.
There are cases that focus on whether state Supreme Courts can rule on what violates that State’s “Cruel Punishments” constitutional rights.
As the current Supreme Court shifts from the “evolving standards of decency” doctrine, we are on the cusp of seeing major changes in the way citizens are treated in this country.
Moving away from this “living” constitutional model, back towards an originalist position places several issues at risk.
Capital punishment, restricted by court cases through bans on the execution of minors or the intellectually disabled may be rolled back. Several justices have signaled their willingness to recraft the interpretation of the Eighth Amendment. Here are a few examples:
In 2019 Justice Gorsuch said, “The Eighth Amendment does not guarantee a prisoner a painless death.”
And in 2024 he said, “The Eighth Amendment does not authorize federal judges to dictate the Nation’s homelessness policy.”
Justice Thomas has written, regarding capital punishment limits on executing intellectually disabled people, “In my view, the Cruel and Unusual Punishments Clause of the Eighth Amendment contains no proportionality principle.”
He has argued that the restrictions in the Eighth amendment were only historically intended to prohibit things like “embowelling alive, beheading, and quartering.”
Justice Alito has argued that legal challenges to lethal injection are part of a “guerilla war against the death penalty.” Further, he has argued with respect to cognitive disabilities for death penalty exceptions, “Without clear rules for determining when multiple IQ scores are dispositive, nearly every…case will devolve into an amorphous, individualized determination.”
We live in a time in which constitutional clauses are no longer considered “absolutes” but are seen as blocks of granite for which we need to use a chisel in order to discover the shapes hidden within them. The problem is that the shape that “You” want to see and that “He” wants to see may be quite different.