Cruel and Unusual Punishment

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

Amendment VIII

The text of the Eighth Amendment derives from the 1689 English Bill of Rights, redacted in the Virginia Declaration of Rights and recommended by the Virginia ratifying convention. The English version used the words "bail ought not be required" as opposed to the amendment's "bail shall not be required," the latter reflecting James Madison's insistence that the amendments be legally enforceable and not mere hortatory statements. When considering the amendment, one Member of Congress thought the wording unclear. Nevertheless, Congress approved the language by a strong majority, perhaps because its phrasing had such a solid pedigree.

The Excessive Bail Clause of the 1689 English Bill of Rights was a response to the practice of some judges who set bails high to avoid having to release defendants on writs of habeas corpus (see Article I, Section 9, Clause 2). In both English and American practice, the level of bail is determined on a case-by-case basis to ensure the defendant's presence at trial. The court often takes into account the character of the charged offense and the previous behavior of the defendant. The Supreme Court has declared that a bail amount would be "excessive" under the Eighth Amendment if it were "a figure higher than is reasonably calculated" to ensure the defendant's appearance at trial. Stack v. Boyle (1951); see also United States v. Salerno (1987). Procedurally, the defendant must file a motion for reduction in order to contest a bail as excessive.

The Cruel and Unusual Punishment Clause seems to point to a preexisting right to bail. In fact, absent weighty circumstances, American courts have always presumed that each defendant has a right to liberty pending trial by payment of bail. Nevertheless, the courts have been deferential to legislative exceptions to the right to bail. Carlson v. Landon (1952). In British practice, most serious crimes were nonbailable. See Hunt v. Roth (C.A. Neb. 1981). In America, many colonial charters and state constitutions, as well as the Northwest Ordinance of 1787 and the Judiciary Act of 1789, guaranteed a right to bail but made exception for capital offenses. More recently, the Supreme Court has approved a state statute allowing pretrial detention of some juveniles, Schall v. Martin (1984). In United States v. Salerno (1987), the Court upheld the pretrial detention provisions in the Bail Reform Act of 1984 that applied to persons who were arrested for serious crimes and who might pose a danger to the community. Based on the Bail Reform Act, a federal district court has upheld detention without bail of persons with alleged terrorist connections. United States v. Goba (2003).

Scholars have debated the extent to which the clause restricts Congress as well as the judiciary. In Salerno, the Court declared that the government may pursue particular "compelling interests through regulation of pre-trial release," but it expressly left open the question of "whether the Cruel and Unusual Punishment Clause speaks at all to Congress's power to define the classes of criminal arrestees who shall be admitted to bail." The Supreme Court has not authoritatively applied the prohibitions on excessive bail to the states through the Due Process Clause of the Fourteenth Amendment, although in Schilb v. Kuebel (1971), Justice Harry Blackmun for the majority noted that the Court has "assumed" that the prohibition has been incorporated.

The English Bill of Rights of 1689 also sought to undo the practice of the judges who, favoring the Stuarts, levied fines against the king's enemies, thus allowing them to be jailed for nonpayment. At the time of the drafting of the Eighth Amendment, a majority of states included the prohibition in their constitutions, and the provision induced no debate on the floor of Congress.

In United States v. Bajakajian (1998), the Supreme Court found little in the history of the clause to determine what would constitute an "excessive" fine. It declared that, within the context of judicial deference to the legislature's power to set punishments, a fine would not offend the Eighth Amendment unless it were "grossly disproportional to the gravity of a defendant's offense." Applying the standard, the Court, through Justice Clarence Thomas, found that a $357,144 civil forfeiture penalty for failing to report a currency transfer of more than $10,000 was grossly disproportionate to the fine for conviction, which would have been only $5,000. In dissent, Justice Anthony Kennedy found the scale of forfeiture quite common and would have deferred to Congress's determination of the need for and the appropriateness of the forfeiture.

Although the Court had held in Austin v. United States (1993) that a civil forfeiture penalty was included within the excessive fines provision, it had also declared that a punitive damage award in a purely civil case is not covered by the excessive fines clause, holding that "there must be a payment to a sovereign as punishment for some offense" for the clause to apply. Browning-Ferris Industries v. Kelco Disposal, Inc. (1989). The Court, in some highly contested decisions, now reviews punitive damage awards under the Due Process Clause of the Fourteenth Amendment. See, e.g., BMW of North America v. Gore (1996).

There has been much debate over the categories of punishments covered by the Cruel and Unusual Punishment Clause. Possible categories at issue are (1) punishments not prescribed by the legislature, (2) torturous punishments, and (3) disproportionate and excessive punishments. Although the issue is disputed, the weight of scholarly opinion indicates that the ban on cruel and unusual punishment in the 1689 English Bill of Rights applied only to punishments not authorized by Parliament. The American colonial understanding, on the other hand, was that the ban applied to torturous punishments such as pillorying, disemboweling, decapitation, and drawing and quartering. Inasmuch as such punishments were virtually absent in colonial America, Justice Joseph Story in his Commentaries on the Constitution of the United States believed that "[t]he provision would seem wholly unnecessary in a free government, since it is scarcely possible, that any department of such government should authorize, or justify such atrocious conduct."

Early Supreme Court interpretations subscribed to the view that the clause only curbed tortuous punishments as defined at the time of the amendment's ratification. See Pervear v. Commonwealth (1866). The Court subsequently upheld execution by public shooting, Wilkerson v. Utah (1878), and electrocution, In re Kemmler (1890). The third possible meaning of the clause, that is, prohibiting disproportionate or excessive punishments, was raised in dissent in O'Neil v. Vermont (1892). The Court adopted the dissent's view in Weems v. United States (1910) and reconfirmed that holding in Louisiana ex rel. Francis v. Resweber (1947). In Trop v. Dulles (1954), Chief Justice Earl Warren rejected reliance on the original understanding as the appropriate standard in favor of the "evolving standards of decency that mark the progress of a maturing society." Since that time, the Supreme Court's views on the amendment have been confused, and the current Court appears divided and unable to agree on a common interpretive standard.

In Furman v. Georgia (1972), the Court held in a 5–4 decision that the Eighth Amendment banned the arbitrary infliction of the death penalty, requiring states to rewrite their laws to give judges and juries standards according to which the penalty could be imposed. In the majority, three Justices opined that the intent of the clause was to ban arbitrary punishments. Two other Justices rejected an originalist approach to reach the same result. In the main, the majority believed that the penalty had been applied in a discriminatory or arbitrary manner. In dissent, Chief Justice Warren E. Burger declared that the Framers meant to ban only punishments not prescribed by law as well as tortuous punishments. In Gregg v. Georgia (1976), the Court held that the death penalty was not a per se violation of the Eighth Amendment. The majority opinion agreed with Chief Justice Burger's historical view of the original intent of the Eighth Amendment but nonetheless adopted Chief Justice Warren's "evolving standards of decency" standard. The decision requires separate phases in a trial for the determination of guilt and the imposition of the death sentence. In Woodson v. North Carolina (1976), the Court held that any law leaving the jury without discretion was unconstitutional.

The meandering history of Supreme Court opinions continued. In Solem v. Helm (1983), Justice Lewis F. Powell's majority opinion held that the ban on disproportionate punishments was part of the 1689 English Bill of Rights, even if the Framers' view was different. Harmelin v. Michigan (1991), however, reversed Solem, and Chief Justice Rehnquist rejected Justice Powell's analysis. Chief Justice Rehnquist and Justice Scalia reiterated that the primary purpose of the amendment was to void judge-imposed punishments that were not prescribed in the law. Concurring, Justice Kennedy argued that disproportionality is forbidden by the amendment. Justice Kennedy's views were accepted by the majority in Atkins v. Virginia (2001) in an opinion written by Justice John Paul Stevens. Nonetheless, Stevens refused to base his decision on the original meaning and relied on Warren's "evolving standards of decency" to hold that it is cruel and unusual to execute the mentally ill. Generally speaking, there is now a proportionality requirement at least in the Court's death-penalty cases.

In back-to-back cases, Ewing v. California (2003) and Lockyer v. Andrade (2003), the Court continued to advocate Justice Kennedy's interpretation of the Eighth Amendment but held that the life sentence in California's three-strikes law did not offend the principle of proportionality. Justice Scalia, joined by Justice Thomas, concurred on the ground that the clause lacks a proportionality requirement.

Over the past few decades, the Court has held that rape may not be punished by death, Coker v. Georgia (1977), because the state should not be able to take away the perpetrator's life if he did not take away the life of his victim. In line with this argument, the Court later held that only major accomplices in a felony murder conviction may be sentenced to death. Enmund v. Florida (1982), Tison v. Arizona (1987). The Court has also held that Congress may not take away a person's citizenship for desertion from the army. Trop v. Dulles (1958). Nor are inhumane prison conditions permissible under the Eighth Amendment, Estelle v. Gamble (1976), Rhodes v. Chapman (1981). Further, the amendment forbids serious or malicious harm caused by prison officials. Wilson v. Seiter (1991), Hudson v. McMillian (1992). Nor may a state execute a person under eighteen years of age, Roper v. Simmons (2005). A state may not punish a person for a "status offense," such as being a drug addict, Robinson v. California (1962), though the amendment does not, of course, bar prosecution for the buying and selling of drugs. The amendment, however, does not prohibit corporal punishment in public schools, Ingraham v. Wright (1977). In addition, a mandatory life sentence after three convictions is constitutional. Rummel v. Estelle (1980). In Gherebi v. Bush (2003), the federal appeals court did not reach the merits of the assertion by plaintiffs that the detention of persons at Guantanamo Bay was a violation of the Cruel and Unusual Punishment Clause.

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David F. Forte
Professor of Law
Cleveland-Marshall College of Law