The Eighth Amendment reads as follows:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
A defendant’s pre-trial detention is affected by the excessive bail clause. Excessive fines remain waiting a Supreme Court definition. Cruel and unusual punishment has been a major subject of Eighth Amendment litigation.
The Excessive Bail Clause
A person accused of a crime is presumed innocent until found guilty at a trial or pleads guilty in open court. It is difficult to prepare a defense and consult with counsel while in custody.
The Supreme Court said in Stack v. Boyle: 'This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. . . . Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.'
Bail is excessive when set at an amount higher than necessary to achieve a legitimate government purpose. If the purpose is to ensure a defendant’s appearance at trial, and if found guilty serve the sentence, then bail may not be set higher than needed to meet those ends.
To contest bail as excessive a defendant must ask for a reduction and if denied, appeal that decision. The Supreme Court has found that bail may be denied when it has been demonstrated that the defendant is a danger to the community.
The Excessive Fines Clause
The Supreme Court has not given definition to an excessive fine. In cases of indigents who may be imprisoned for failure to pay fines the Court has used the Equal Protection Clause of the Fourteenth Amendment and so has not addressed the amount of fines as excessive.
It is clear that large punitive damages in civil lawsuits are not covered by the Eighth Amendment. The Court has indicated that civil forfeiture proceedings where a person’s property is taken by the government related to a criminal proceeding may be subject to the Excessive Fines Clause, but the answer to that question has not been definitive.
The Cruel and Unusual Punishment Clause
Some punishments are forbidden entirely by the Cruel and Unusual Punishments Clause. The test to determine if a punishment is banned by the Eighth Amendment was laid out in Furman v. Georgia,
- 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.
In Wilkerson v. Utah, the Supreme Court provided examples of punishment that would be cruel and unusual punishment for any crime:
- drawing and quartering
- public dissecting
- burning alive
- disemboweling
The Death Penalty as Cruel and Unusual
The Court has addressed the death penalty in the context of the Eighth Amendment and found that executing the mentally handicapped and executing people who were under age 18 are violations regardless of the crime.
As to other aspects of the death penalty, capital punishment is not cruel or unusual, but violates the Amendment if imposed in an arbitrary manner. As a result the Court has required legislatures to specifically define the circumstances giving rise to capital punishment and requiring special procedures and jury findings before it can be imposed.
David J. Shestokas - Mr. Shestokas is a former prosecutor & writes on the Constitution & legal issues for the Save America Foundation & Suite 101.
Join the Conversation