Eighth Amendment

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Eighth Amendment

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

The Eighth Amendment was put in place to prevent the government from excessively punishing defendants and criminals before and after trial. Punishment is any action taken against a person who has committed an offense. Most legal punishments are created by legislatures (the law-making branch of government) and then imposed, or handed out, by courts. Punishments include:

  • Fines: a fine is a sum of money one party is required to pay to another party as punishment for an offense.
  • Corporal (bodily) punishment: this form of punishment has largely been excluded from the American legal system. But at one time whipping, branding, and even the slicing off of a criminal’s ear or finger were common punishments.
  • Incarceration (imprisonment): since the Eighth Amendment was drafted, incarceration has become a common form of punishment. Criminals are sentenced to time behind bars for a wide variety of crimes, including theft and murder.
  • Capital Punishment (the death penalty): a person convicted of a “capital crime” may be sentenced to death. The government’s definition of capital crimes has changed over time. In the early twenty-first century, murder, crimes in which a person died during the commission (act) of a crime, and certain drug crimes are punishable by death in the United States.
  • Pretrial Incarceration: defendants who are kept in jail awaiting trial are, in effect, being punished before they have been found guilty of an offense. The bail system allows a defendant to pay a sum of money (bail) to the court in order to get out of jail before his or her trial. The bail serves as the defendant’s promise or guarantee not to flee (run away). If the defendant fails to appear at trial, he or she forfeits (loses) the bail money and faces additional criminal charges. Bail allows defendants to escape pretrial punishment and makes it easier for a defendant to prepare for trial.

The following are descriptions of the three short separate clauses contained in the Eighth amendment, each of which deals with courts and defendants:

  • The Excessive Bail clause prohibits the government from setting bail at an inappropriately high amount.
  • The Excessive Fines clause bans the government from imposing “excessive” fines.
  • The Cruel and Unusual Punishments clause bans the government from inflicting punishments considered “cruel and unusual.” Some believe this clause limits the government from inflicting corporal or capital punishment of any kind. Others believe the clause requires the government to make sure that a punishment is proportionate to (in balance with) the crime being punished.

Ratification Facts


Submitted by Congress to the states on September 25, 1789, along with the other nine amendments that comprise the Bill of Rights.


Ratified by the required three-fourths of states (eleven of fourteen) on December 15, 1791. Declared to be part of the Constitution on December 15, 1791.

Ratifying States:

New Jersey, November 20, 1789; Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; New York, February 24, 1790; Pennsylvania, March 10, 1790; Rhode Island, June 7, 1790; Vermont, November 3, 1791; Virginia, December 15, 1791 (amendment adopted).

Origins of the Eight Amendment

The practice of issuing bail to criminal defendants dates as far back as seventh-century England. In the 600s, a person accused of a murder was required to pay a sum of money (known as bohr) to the murder victim’s family. If the defendant was later found innocent of the crime, the bohr was returned.

In ninth- and tenth-century England, a similar system rose up to handle defendants before trial. Judges used to travel from county to county hearing local cases. A town’s sheriff was responsible for holding defendants until these traveling courts came to town. But holding defendants was expensive, and sheriffs often released defendants who posted a sum of money as a promise that they would show up at trial. However, this early bail system was subject to abuse. Sheriffs could set bail at very high amounts in order to take advantage of wealthy defendants or to keep some defendants in jail.

The first law that imposed a legal standard for setting bail in England was the First Statute of Westminster (1275). This law required that bail be set for certain crimes, but it also prohibited bail for crimes such as murder, treason, and jail-breaking.

Raising money for the King

Sheriffs were not the only officials who took advantage of England’s early legal system. Judges often imposed huge fines that were clearly out of proportion (or balance) with the actual offense being punished. Often the court’s purpose in imposing such large fines was not to punish the offender, but to raise money for the Crown (the King or Queen of England). This practice became especially common during the reign of King James II (1633–1701). His rule from 1685 until 1688 helped spur the passage of the English Bill of Rights in 1689 (see below).

Brutal punishment for criminals

Bail and fines were excessive in England, but other punishments were even worse. As late as the seventeenth century, England’s courts inflicted many harsh corporal punishments. Such punishments included: drawing and quartering (authorities cut off a man’s arms and legs and removed his inner organs while he was still alive); branding (burning with a hot iron); whipping; and cutting off body parts (such as ears or fingers).

In seventeenth-century England, capital punishment (punishment by death) was very common. Some two hundred and fifty crimes were punishable by death under England’s legal system, understandably nicknamed the “Bloody Code.” Even as late as 1823, the theft of small amounts of money was still punishable by death.

The English Bill of Rights

In 1689, Britain’s Parliament (legislature) passed the English Bill of Rights. This statute made Parliament the main political power in Great Britain and granted the people of Great Britain certain inviolable (unbreakable) rights. Article 10 of the English Bill of Rights stated that “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” These clauses were eventually used, almost word for word, by the drafters of the Eighth Amendment.

Punishment in Early America

The men and women who came to Britain’s colonies (territories) in North America in the 1600s brought with them much of England’s common law, or legal traditions. Also, though colonists elected local governments, ultimately they were still under the rule of the British government. As a result, the colonial legal system remained closely tied to the English legal system. Corporal punishment was common, as were several types of capital punishment, including death by hanging and burning at the stake.

By the middle of the 1700s, disputes (fights) over taxes, government representation, and the large number of British soldiers being stationed in America led to a split between the American colonies and Great Britain (see Introduction). The colonies eventually fought for—and won—their independence in the American Revolutionary War (1775–83).

After the war, the former colonies (now thirteen independent states) united under the Articles of Confederation (see Introduction) to create a loose-knit nation. From May 23 to September 17, 1787, delegates from the states came together in Philadelphia to create the Constitution of the United States. The Constitution outlined a new form of government and divided that government into three branches:

  • The executive branch (led by the president): responsible for carrying out the laws and policies of the new government;
  • The legislative branch (Congress): responsible for making laws, raising funds, and declaring war, among other things; and
  • The judicial branch (the court system, headed by the Supreme Court): responsible for interpreting all of the nation’s laws.

The new Constitution was ratified (approved) by the states in 1788. However, during public debates, many citizens and politicians objected to the fact that the new Constitution did not have a Bill of Rights, or a list of individual rights. The proposed federal (national) government was much more powerful than it had been under the Articles of Confederation. Citizens worried that the government might abuse its powers. In order to win public support for the Constitution, its supporters agreed to add a Bill of Rights as soon as Congress was in place.

In 1789, the new federal government was established, and Congress convened (met) for the first time. General George Washington (1732–1799) was the supreme commander of the colonies’ forces during the American Revolutionary War. He took office as the first president of the United States. The new Congress quickly undertook the business of drafting the amendments (or changes) to the Constitution that would eventually become the U.S. Bill of Rights.

The language of the Eighth Amendment was taken almost directly from the English Bill of Rights. (George Mason [1725–1782] from Virginia had inserted the same words into Virginia’s Declaration of Rights in 1776.) Congress approved the Eighth Amendment in 1789 after very little debate.

An early debate over terms.

During the discussions over the Bill of Rights Amendments in Congress, Representative William Smith of South Carolina asked, “What is meant by the term ‘excessive bail’? Who are to be the judges? What is understood by ‘excessive fines’? It lays with the court to determine.” Representative Smith worried that the vague terms would eventually make it hard for the government to punishment criminals at all.

A man from Virginia had a very different concern about the wording of the Eighth Amendment. Patrick Henry (1736–1799) was a celebrated Revolutionary War leader. He worried that the vague wording left the government with too much power to set punishments for crimes. “No latitude (freedom) ought to be left [to Congress],” warned Henry. “Your members of Congress will loose the restriction of not imposing excessive fines, demanding excessive bail, and inflicting cruel and unusual punishments.”

Despite the opposite concerns of Smith and Henry, the Eighth Amendment was ratified (agreed to) by the states on December 15, 1791, along with the other nine amendments to the Constitution that became known as U.S. Bill of Rights.

The Highest Court in the Land

The ultimate power to interpret the Constitution and its various amendments belongs to the U.S. Supreme Court. The Court originally consisted of six justices (judges) but was expanded to nine justices in 1869.

Justices may write individual opinions (judgments) about a case or sign another justice’s opinion. Regardless of how many opinions the Court issues, the final ruling is always decided when the judges make a simple vote. It is not uncommon for the Supreme Court to change its own interpretation of law from one case to another.

Defining Excessive Bail in the Courts

The same year the Eighth Amendment was drafted, Congress passed the Judiciary Act of 1789. The Judiciary Act established that all defendants (except those accused capital crimes) had a right to bail.

The idea that defendants accused of capital crimes are not eligible for bail is as old as the system of bail itself. Since defendants in such cases face the death sentence, it is believed that no amount of bail can guarantee a defendant will not try to flee. As an Alabama court put it by quoting the Bible in Ex parte McAnally (1875), “All that a man [has], he will give for his life.”

However, the Eight Amendment has a gap, because it does not specifically say that a defendant has the right to bail; it merely bans “excessive” bail. The Judiciary Act of 1789 filled that gap.

In cases such as Hudson v. Parker (1895), the Supreme Court stressed the importance of bail. The Court stated that bail provided a defendant with the opportunity to better prepare a defense and avoid punishment before trial. But neither the Court’s decisions nor the Judiciary Act of 1789 defined what exactly was meant by “excessive bail.”

Guidelines for setting bail

In Stack v. Boyle (1951), the Supreme Court finally set some guidelines for setting appropriate bail. A lower court had set bail at $dollar;50,000 for each of twelve defendants charged with advocating (arguing for) the violent overthrow of the federal government. The defendants argued that the high bail violated the excessive bail clause.

The government’s lawyers claimed that the high bail was needed because without it the defendants would flee. The Supreme Court agreed that the purpose of bail was to ensure that defendants showed up at trial. The Court found no evidence that showed the defendants were especially likely to avoid trial.

The Court ruled that “bail set at a figure higher than an amount reasonably calculated to [keep a defendant from fleeing] is ‘excessive’ under the Eighth Amendment.” It ordered the lower court to set bail at a reasonable amount for each defendant.

The Stack decision suggested that the only function of bail was to ensure defendants appeared at trial. According to Stack, if the government wanted to set an unusually high bail, it had to show proof that a defendant was likely to flee.

The excess of not setting bail

Four months after the Stack decision, the Supreme Court heard another bail case: Carlson v. Landon (1952). In this case, four foreigners were charged with being members of the Communist Party. At this time, many political leaders in the United States believed that the Communist Party, an international political movement, was interested in overthrowing the U.S. government. Needless to say, the party had been outlawed.

The defendants were detained without bail. The government argued that releasing the defendants “would endanger the welfare and safety of the United States.” The defendants, however, argued that not setting bail in their case violated the excessive bail clause. After all, the purpose of the excessive bail clause was to keep bail reasonably affordable. It was excessive not to allow a defendant to post bail at any price.

But the Supreme Court ruled that the Eighth Amendment did not ensure the right to bail in all cases. Indeed, defendants in capital cases had long been denied bail. What made the Carlson case different was the reason the government did not set bail. Previously, bail was denied to keep defendants from fleeing. In this case, the government denied bail because it felt the defendants posed a danger to society. The Carlson ruling gave the government greater leeway in deciding who could be denied bail.

Changing the U.S. Bail System

The Supreme Court is the ultimate judge of deciding whether procedures used by the government for setting bail are constitutional. But Congress has the power to create laws regulating how bail is set. The legislature first shaped the bail system with the Judiciary Act of 1789 when it created laws that gave defendants in non-capital cases the right to bail. In the second half of the twentieth century, Congress drastically changed the country’s bail system twice.

In the 1960s, studies showed that many defendants were kept in jail before trial simply because they were poor. According to these studies, defendants who could not afford to pay bail stayed in jail before trial, but wealthy defendants held on similar charges were able to pay for their freedom. The studies also showed that defendants who could not post bail were more likely to lose their cases. This data supported the Supreme Court’s statement in Hudson v. Parker (1895) that it is easier for a defendant to prepare a defense if he or she is not in jail. Adding to the unfairness, the data showed that defendants who belonged to a racial minority were less likely than white defendants to have bail set at an affordable amount.

Responding to these studies, Congress passed the Bail Reform Act of 1966. Under the act, most defendants were released from jail on their own recognizance (on their honor) without posting bail. Under the terms of the new law, a defendant could only be required to post bail if the court believed the defendant would otherwise flee.

However, the law allowed judges to impose numerous conditions on defendants who were released from jail without bail. Conditions included requiring a defendant to do the following:

  • remain crime-free before trial;
  • stay within the court’s jurisdiction (area of authority);
  • avoid contact with victims or witnesses;
  • comply with a curfew; and
  • refrain (hold back) from using alcohol or drugs.

If a defendant failed to meet the court’s conditions, he or she could be returned to jail to await trial. Nonetheless, the end result of the Bail Reform Act of 1966 was that many poor defendants were able to stay out of jail before their trials.

By the 1980s, public debate was focused less on the fairness of the bail system and more on curbing crime. In 1984, reacting to the public perception that some defendants were committing crimes while waiting for trial, Congress enacted the Bail Reform Act of 1984. The new act changed the government’s approach to bail by officially introducing the concept of preventive detention, that is, keeping defendants in jail to keep them from committing crimes. The Supreme Court decision in Carlson v. Landon (1952) had established that the government could retain defendants without bail if they posed a danger to the community. But Congress had never passed a law making such preventive detentions official government policy.

Under the Bail Reform Act of 1984, certain types of defendants could be held without bail in order to protect the public: defendants already convicted of a serious crime; defendants arrested while out on bail in a different case; and defendants arrested within five years of release from prison for a serious crime.

In order to refuse bail, a judge had to consider the following: the nature of the crime; whether the crime involved violence or drugs; how strong the evidence in the case was; the defendant’s personal history; and the danger the defendant posed to the community. Some argued the Bail Reform Act violated the excessive bail clause. However, in United States v. Salerno (1987), the Supreme Court ruled that the law was in fact constitutional.

The right to bail

In 1987, the Supreme Court heard the case of United States v. Salerno. Salerno and Vincent Cafaro had been arrested and charged with racketeering (organized crime). At a hearing before their trial, Salerno and Cafaro were denied bail under the Bail Reform Act of 1984. The act allowed preventive detention (keeping a person in jail for safety reasons) of certain defendants (see “Changing the U.S. Bail System” box).

The defendants argued that the act violated the excessive bail clause. The Supreme Court disagreed and ruled again that nothing in the Eighth Amendment specifically guarantees bail in all cases. In its decision, the Court also stated that a primary concern of government was “the safety and indeed the lives of its citizens.” Therefore, the Court could not object to the preventive detention of dangerous defendants in a “carefully limited” number of cases.

While Congress has repeatedly provided courts with guidelines for setting bail, the Supreme Court’s various excessive bail decisions have yet to offer a hard and fast interpretation of what constitutes excessive bail.

Limits on Fines

The excessive fines clause received very little attention from the U.S. Supreme Court until the late twentieth century when two separate rulings helped define the clause.

Appropriate fines

In 1989, the Supreme Court heard the case of Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc. In that case, a jury had ordered Browning-Ferris to pay $dollar;6 million in fines to one of its competitors, Kelco Disposal, Inc. Lawyers for Browning-Ferris argued that the huge sum violated the excessive fines clause of the Eighth Amendment. However, the Supreme Court ruled that the Eighth Amendment only covered fines paid to the government and did not apply to fines paid to private parties.

Inappropriate fines

In United States v. Bajakajian (1998), Hosep Bajakajian pleaded guilty to attempting to leave the country with $dollar;357,144 without telling the government that he was taking the money. This act violated a federal law that requires a person to declare (announce to authorities) any amount of cash over $dollar;10,000 that he or she takes out of the United States. The government argued that Bajakajian and his wife should have to forfeit (give up) all of the cash they had been carrying. The trial court, however, only fined the couple $dollar;15,000. The government took the case to the Supreme Court, and the Supreme Court ruled that forcing Bajakajian to give up $dollar;357,144 would violate the excessive fines clause.

Although the decision established that there could indeed exist such a thing as an excessive government fine, the case did not provide a set of guidelines for determining what makes a particular fine excessive.

Cruel and Unusual Punishment

Corporal punishment persisted in the United States after ratification of the U.S. Constitution and the Bill of Rights. But by the end of the eighteenth century, public opinion in the country had turned against physical punishments and favored incarceration (a prison sentence).

The U.S. Supreme Court has consistently ruled that most corporal punishments are cruel and unusual. In Wilkerson v. Utah (1878), the Court ruled that disemboweling (cutting out inner organs) of a live person was cruel and unusual, while holding that death by firing squad was constitutional. In in re Kemmler (1890), the Court reaffirmed that “burning at the stake, crucifixion (nailing to a cross), [and] breaking on the wheel (limbs torn apart)” were also unconstitutional, but it upheld a new form of execution called electrocution (a combination of the words execution and electricity). In Skinner v. Oklahoma (1942), the U.S. Supreme Court ruled that the physical sterilization (removal of sexual organs) of criminals was also unconstitutional.

Corporeal punishment in schools.

The Court has allowed government entities to continue one mild form of corporal punishment. In Ingraham v. Wright (1977), the Supreme Court ruled that the Eighth Amendment does not ban public schools from using physical punishment to discipline children.

Cruel and Unusual Punishments behind Bars

One of the purposes of the Eighth Amendment was to prevent the U.S. government from inflicting the sorts of violent physical punishments that were still being used in England at the end of the eighteenth century. At that time in North America, the practice of incarcerating (imprisoning) criminals had already begun to replace corporal punishment.

The first American prisons were generally clean, quiet places. Prisoners were expected to reflect on their crimes in silence while serving their sentences. Throughout the nineteenth century, public attitudes toward incarceration changed. Many prisons became filthy, dangerous places where the main purpose was simply to keep criminals off the streets.

The U.S. Supreme Court did not apply the Eighth Amendment to the issue of prison conditions until 1976, when it heard the case of Estelle v. Gamble. In that case, the Court ruled that the “deliberate indifference to serious medical needs of prisoners constitutes ‘unnecessary and wanton infliction of pain,’” and therefore violates the Eighth Amendment.

A large number of the prison-related cruel and unusual punishment claims relate to alleged abuse at the hands of prison guards. In Whitley v. Albers (1986), Gerald Albers, an inmate at the Oregon State Penitentiary, was shot in the leg during a prison riot. Albers claimed that the shooting constituted cruel and unusual punishment. But the Supreme Court ruled that Albers failed to prove that prison officials had acted unnecessarily or carelessly. Therefore, the shooting did not violate Albers‘s Eighth Amendment rights.

However, in Hudson v. McMillian (1992), the Court ruled differently, even though a prisoner had not been hurt as badly as Albers had. Keith J. Hudson was a prisoner in a Louisiana state prison and was beaten by two guards as their supervisor watched.

Hudson suffered bruises, loosened teeth, and swelling in his face and claimed that the beating amounted to cruel and unusual punishment. Prison officials argued that the beatings could not be considered cruel and unusual punishment because Hudson’s injuries were relatively minor. The Supreme Court disagreed. It ruled that a prisoner could bring a claim of excessive force under the cruel and unusual punishments clause, even if his or her injuries were minor and required no medical attention.

In general, the Court has ruled that prison officials who purposely or carelessly cause a prisoner physical or medical harm risk are violating the cruel and unusual punishment clause of the Eighth Amendment.

Capital Punishment

The most common method of capital punishment in the colonies before the Revolutionary War was death by hanging. It remained so in the United States throughout the nineteenth century. In Wilkerson v. Utah (1878), the Supreme Court ruled that the public shooting of a convicted murderer was not cruel and unusual punishment.

However, the Court did look at punishments it considered excessive. The court said that “punishments of torture … and all others in the same line of unnecessary cruelty, are forbidden” by the Eighth Amendment. In the case of In re Kemmler (1890), the Court further stated that “punishments are cruel when they involve torture or a lingering (drawn out) death.”However, the Court approved of death by electrocution.

Cruel or usual

However, those rulings in no way stopped capital punishment. In 1998, thirty-two states authorized capital punishment. Legal methods of execution in the United States include hanging, shooting, gas chamber, lethal injection (death by a poisoned injection), and electrocution (death by electricity).

The most controversial of these methods of execution is the gas chamber. It is also the slowest to bring about death. During a gas chamber execution, the prisoner is placed in a closed cell that is quickly filled with poisonous fumes. The method is approved by only five states: California, Maryland, Missouri, Wyoming, and Arizona.

In Gomez v. California (1992), the Supreme Court refused to strike down California’s use of the gas chamber. However, Justices John Paul Stevens and Harry A. Blackmun opposed the use of gas chambers. They called attention to the punishment’s cruelty by citing one witness’s description of Don Eugene Harding’s execution in an Arizona gas chamber:

When the fumes enveloped Don’s head he took a quick breath. A few seconds later he looked in my direction. His face was red and contorted as if he were attempting to fight through tremendous pain … he was shuddering uncontrollably and his body was racked with spasms. His head continued to snap back … Don Harding took ten minutes and thirty-one seconds to die.

The Court’s refusal to outlaw the gas chamber shows how much the Court’s opinion can change over time. It is hard to imagine that the justices who decided In re Kemmler in 1890 would not have ruled that the gas chamber execution described above did not involve “torture or a lingering death.”

Eliminating the death penalty

The Supreme Court temporarily outlawed all forms of capital punishment in its 1972 decision Furman v. Georgia. Throughout the nineteenth and early twentieth century, the Court had never questioned the states’ right to impose the death penalty for capital crimes. It may be argued that no punishment is crueler than actually killing a defendant. However, it is much harder to argue that the death penalty is in any way unusual; governments have executed criminals throughout recorded history.

But in the 1950s and 1960s, legal professionals made thorough studies of how capital punishment was imposed. Like similar studies of the U.S. bail system, studies of the death penalty revealed an unfair system. Black and poor defendants were more likely than white or wealthy defendants to be sentenced to death.

Unequal punishment—cruel and unusual.

In 1972, the Supreme Court examined this issue in three cases: Furman v. Georgia, and two companion cases heard at the same time, Jackson v. Georgia and Branch v. Texas. After hearing evidence that showed patterns of discrimination in issuing death sentences, the justices voted five to four to put an end to the death penalty in the United States.

Two of the five justices who voted to end capital punishment argued that the death penalty itself was unconstitutional under the Eighth Amendment in all circumstances: Thurgood Marshall and William H. Brennan. However, the other three justices found that the problem with capital punishment in the United States was not the punishment itself, but how courts decided who received such punishments.

Justice William O. Douglas looked at the data collected in several studies. He argued that because capital punishment discriminated against black defendants and poor defendants, it was “not compatible with the idea of equal protection of the laws that is implicit [suggested] in the ban on ‘cruel and unusual’ punishments.” Justice Douglas said the Eighth Amendment required laws that were “evenhanded, nonselective, and nonarbitrary.”

Justice Byron R. White also argued that the problem with the death penalty was that it was imposed unfairly. As did Justice Potter Stewart. In his opinion, Justice Stewart wrote that the death penalty was “freakishly imposed,” and was cruel and unusual punishment “in the same way that being struck by lightning” was cruel and unusual.

The decision in Furman outlawed the death penalty for several years, and saved over six hundred people from execution in the United States. But because the decision did not rule that the death penalty is always cruel and unusual, it left the door open for the return of capital punishment under a more fair system.

Capital punishment resumes

After the Furman decision, states revised their capital punishment laws and addressed the unfairness that had been revealed in their systems. States changed their laws to give judges and juries more guidance in deciding whether to impose the death penalty. The statutes also gave defendants who were convicted of capital offenses the right to an automatic appeal (rehearing) of their case.

On July 2, 1976, the Supreme Court reinstated the death penalty with its decisions in three cases: Gregg v. Georgia (1976), Proffitt v. Florida (1976), and Jurek v. Texas (1976).

By a seven-to-two vote, the Court ruled that the states in those cases had cured the flaws in their capital punishment laws pointed out in Furman. The decision pointed the way for other states to legally bring back the death penalty.

Extending capital offenses

Since the drafting of the Eighth Amendment, fewer and fewer crimes have been classified as capital offenses. In Enmund v. Florida (1982), the Supreme Court officially limited the death penalty’s uses to persons convicted of murder (intentional killing). The Court modified that decision in Tison v. Arizona (1987). The Court ruled that a person who commits a dangerous felony resulting in a death (even if the killing was unintentional) could also be executed.

Since the Tison decision, Congress has passed the Drug Kingpin Act (1988) and the Federal Death Penalty Act (1994). The Drug Kingpin Act made high-level drug trafficking (dealing) a capital offense. The Federal Death Penalty Act made approximately fifty crimes punishable by death, including several that do not involve murder or killing. As of 2007, no one had been sentenced to execution under these laws, so the Supreme Court had not ruled on their constitutionality.

Making the Punishment Fit the Crime

The rulings in Enmund v. Florida and Tison v. Arizona raise the issue of proportional (similar in size or importance) punishment and the Eighth Amendment. The fundamental principle behind proportionality is that the punishment should fit the crime. A pickpocket should not face death, and someone who double-parks should not face prison.

The first important decision on proportionality came in the case of Weems v. United States (1910). In that case, Paul A. Weems was convicted of falsifying a public document. He was sentenced to hard labor for twelve to twenty years. Weems argued that the sentence was cruel and unusual because the seriousness of the punishment was not proportionate to the seriousness of the crime.

After examining sentences in similar cases and sentences for more serious crimes, the Supreme Court agreed with Weems and overruled the sentence. This instance was the first time that the Court specifically ruled that the cruel and unusual punishments clause was designed, in part, to balance sentences (keep them proportionate) with the crime being punished.

In Coker v. Georgia (1977), the Court ruled that the execution of a man for the rape of an adult woman was a “grossly disproportionate” punishment for the crime committed. But it was the case of Solem v. Helm (1983) in which the Court gave specific guidelines for deciding whether a punishment was proportional to the crime.

In that case, Jerry Buckley Helm was convicted of passing a bad check for one hundred dollars in South Dakota. Helm had a long history of nonviolent crime. He was sentenced to life in prison without the possibility of parole.

In a five-to-four vote, the Supreme Court ruled that the sentence was cruel and unusual because it was disproportionate to the seriousness of the offense. In its decision, the Court ruled that courts must analyze the sentence in three ways to determine if it is proportional: compare the seriousness of the offense with the harshness of the penalty; compare the sentence with sentences for other crimes in the same jurisdiction (jurisdiction is a court’s area of authority); and compare the sentence with sentences given out for the same crime in other courts’ jurisdictions.

Proportionate sentencing

With the Solem ruling, the Supreme Court took for granted the Eight Amendment’s proportional sentencing requirement. However, in Harmelin v. Michigan (1991), the Court seemed to forget this requirement. In Harmelin, a Michigan man was convicted of possessing over 650 grams of cocaine and was sentenced to life in prison without the possibility of parole. The defendant argued that the punishment was cruel and unusual and disproportionate to the crime.

When the case came before the Supreme Court, five justices ruled that the sentence was severe, but not necessarily disproportionate. The Court upheld the sentence. The four dissenting justices (those in disagreement with the majority) argued that the very “notion” that Harmelin’s sentence was in any way proportional was “itself both cruel and unusual.”

But more important than the justices’ disagreement over the proportionality of Harmelin’s sentence was the opinion put forth by Justice Antonin Scalia and Chief Justice William H. Rehnquist. Justices Scalia and Rehnquist argued that it did not matter whether Harmelin’s punishment was disproportionate to his crime; the Eighth Amendment simply did not contain any requirement that every punishment somehow “fit” the crime.

All the other justices argued that the Eighth Amendment required proportional punishments, but Justices Scalia and Rehnquist’s opinions cast a shadow of doubt over the relationship between proportionality and the Eighth Amendment.

Attacks on the Death Penalty in the Early 2000s

In the early 2000s, the death penalty remained a prominent feature in U.S. jurisprudence with thirty-eight states approving it. Twelve states (Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin) and the District of Columbia do not allow the death penalty. This difference can occur in a legal system based on federalism in which the states hold a significant degree of autonomy to set laws for themselves.

The Supreme Court has prohibited the death penalty for certain types of inmates. In 2002 the Court ruled six-to-three in Atkins v. Virginia that mentally retarded inmates could not be executed. Writing for the majority, Justice John Paul Stevens reasoned that “there is abundant evidence” that mentally retarded inmates “often act on impulse rather than pursuant to a premeditated plan.” The Court overruled its 1989 decision Penry v. Lynaugh, which had ruled that it was constitutional to execute mentally retarded inmates.

Stevens cited international sources in ruling that the world community, not just the states, had moved away from executing mentally retarded inmates. This observation drew the ire of dissenting Justice Antonin Scalia, who questioned why the Court in interpreting the U.S. Constitution should even consider the views or laws of other countries or international organizations.

Then, in 2005 the Supreme Court in a five-to-four decision in Roper v. Simmons held that executing juveniles violates the Eighth Amendment. The case involved Christopher Simmons who committed murder when he was a seventeen-year-old high school junior in the state of Missouri. The majority of the Court determined that, like mentally retarded inmates, juveniles do not appreciate the gravity of their offenses as much as most adults. The Court concluded that the death penalty is a disproportionate punishment for juveniles.

The majority again focused in part on the fact that other countries did not sanction the death penalty for juveniles. Writing for the majority, Justice Anthony Kennedy said: “It is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty.”

Once again Justice Scalia dissented: “I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners.”

A Vague but Powerful Legacy

Some two hundred years after William Smith and Patrick Henry objected to the vague language of the Eighth Amendment, there is still little agreement on exactly what is meant by excessive bail, excessive fines, and cruel and unusual punishment. As vague as the amendment’s clauses remain, the Eighth Amendment has nonetheless provided the Supreme Court with a means of regulating excessive bail and punishment.

While the Court has ruled in several cases that the government may legally deny bail to dangerous defendants, it has also repeatedly held that in most cases, defendants have the right to reasonable bail.

Aided by public sentiment, the Supreme Court has also used the Eighth Amendment to banish most corporal punishments from the legal system. The Supreme Court has consistently ruled that the ultimate punishment, death, is constitutional. However, it has used the Eighth Amendment to take steps against unfair sentencing procedures in capital punishment cases and to outlaw most forms of execution that involve torture or lingering death.

Finally, there has been some disagreements among the justices. However, the Court has generally used the Eighth Amendment’s prohibition against cruel and unusual punishment and excessive fines to require that crimes or offenses are proportionately punished.

However, many questions remain about the death penalty. Some of these include: the methods of execution, the factor of race in the death penalty, and the release of innocent persons on death rows in various states. One of the most disturbing aspects of the death penalty is that many studies continue to show that race plays a role in who lives and dies.

In McCleskey v. Kemp (1987), the Supreme Court was confronted with the Baldus Study, which established that those who kill white victims are far more likely to face capital punishment charges than those who kill non-white victims. The Supreme Court did not refute the study, but it upheld the capital sentence of African American defendant Warren McCleskey, reasoning that he had not shown purposeful discrimination based on race in his own case. Unfortunately, other researchers have reached similar results. For this reason, Kentucky passed its so-called Racial Justice Act in 1998 to help ensure that defendants are selected for capital charges for reasons other than race.

Even more disturbing perhaps is the fact that many defendants were released from death row, some within a month or week of their scheduled execution. Many of these defendants were released after DNA testing conclusively showed they could not have been the perpetrator of the crime for which they were convicted. In January 2003 in his last day in office, Illinois governor George Ryan commuted the sentences of every inmate on death row to a life sentence. Moratoriums (legal periods of delay) have been instituted in several states.

Nonetheless, public opinion polls continued in the early 2000s to show that a majority of the public supports the death penalty for murderers. There is a feeling among many people that it is not cruel and unusual punishment under the Eighth Amendment to execute the most vile murderers.

It is likely that controversies over capital punishment will continue throughout the twenty-first century.




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