The Eighth Amendment: Cruel and Unusual Punishment

The Eighth Amendment protects the rights of prisoners before they are tried and after they are convicted. It prohibits excessive bail, money or property posted as security to obtain release from jail pending trial. The amendment also bars excessive fines and “cruel and unusual” punishments if the accused is found guilty. An example of constitutional plagiarism, the Eighth Amendment comes almost word for word from the English Bill of Rights of 1689. However, in 1641 the Massachusetts Body of Liberties had also provided for bail and forbade cruel and unusual punishments.

Nonetheless, the Puritans allowed the death penalty for blasphemy and used physical punishments such as cutting off ears and branding with a hot iron. According to the Supreme Court, cruel and unusual punishment is defined by “evolving standards of decency.” But Americans continue to debate whether such standards should include the death penalty.

“Excessive bail shall not be required, nor excessive fines imposed”

This provision in the Eighth Amendment does not give an unconditional right to bail. Instead, it specifies that bail, when allowed, shall not be “excessive.” Federal and state laws establish the conditions whereby bail is granted. For example, bail may be denied in capital cases or if the defendant has threatened witnesses. Bail allows the defendant to remain free pending trial, because a person is assumed to be innocent until proven guilty.

The purpose of bail is generally to guarantee that the defendant will appear in court. The Supreme Court ruled in Stack u Boyle (1951) that any bail beyond that necessary to ensure the defendant’s presence at trial is “excessive.” But Congress passed the Bail Reform Act in 1984, allowing federal courts for the first time to deny bail based on predictions of the future dangerousness of the defendant. This practice, known as preventive detention, was upheld by the Supreme Court in United States v. Salerno (1987).

The Eighth Amendment also prohibits excessive fines. The Supreme Court has ruled that the amendment only limits fines levied by the government, not punitive damages in private lawsuits. The Eighth Amendment’s restrictions on excessive bail and fines have not been incorporated by the Supreme Court to apply to the states.

“Nor cruel and unusual punishments inflicted”

Although this provision bans punishments that are “cruel and unusual,” it does not specify what they are. In Trop n Dulles (1958), the Supreme Court ruled that the prohibition on cruel and unusual punishments “must draw its meaning from evolving standards of decency that mark the progress of a maturing society.” Therefore, certain punishments that were acceptable when the Eighth Amendment was ratified, such as whippings and cutting off ears, are no longer permissible today. The most controversial question about the Eighth Amendment is whether American society can “evolve” to the point that the death penalty becomes unconstitutional.

Capital Punishment In early America, death was the automatic sentence for murder. State laws began to distinguish between types of murder, and jurors were given more discretion in issuing death sentences. However, these laws gave jurors no guidance in choosing life or death for a defendant. Social scientists noted that jurors did not treat like cases alike, and that if they followed a pattern it was based on race. African Americans were sentenced to death far more often than whites, and defendants executed for rape were virtually always black men charged with attacking white women.

In Furman v. Georgia (1972), the Supreme Court held that the death penalty, as then carried out in the United States, was “wantonly” and “freakishly” imposed and therefore violated the Eighth Amendment. The Court did not declare mat capital punishment was unconstitutional per se, but that the states had to give judges and juries more guidance in imposing the death penalty. A moratorium on executions ensued, until approximately three-fourths of the states had enacted new statutes.

The Court ruled in Gregg v. Georgia (1976) that “the punishment of death does not invariably violate the Constitution.” The death penalty was not “unusual” punishment, said the Court, because so many states had passed laws restoring capital punishment after Furman. Moreover, in addition to deterrence of future murderers, Justice Potter Stewart maintained that retribution was a sufficient justification for the death penalty “in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.”
However, Justice William Brennan’s dissent argued that “the law has progressed to the point…that the punishment of death, like punishments on the rack, the screw, and the wheel, is no longer morally tolerable in our civilized society.”

In Gregg, the Court upheld a Georgia law that limited jury discretion by dividing a capital trial into a guilt phase and a sentencing phase. First, the jury must determine if the defendant was guilty of the crime. Then, in the sentencing phase, the jury had to consider both aggravating and mitigating circumstances to decide if the defendant deserved to die for his crime.

Aggravating circumstances, such as the inhuman manner in which the crime was committed, increased the gravity of the crime. Mitigating circumstances, such as the character and life history of the defendant, lessened the severity of the crime. However, the Supreme Court ruled in Woodson v. North Carolina (1976) that a state law totally removing discretion by making a death sentence mandatory violated the Eighth Amendment.

In general, the Supreme Court has held that the death penalty should be used only for the crime of murder. The Court struck down laws that allowed capital punishment for rape convictions in Cokern Georgia (1977).

The Court has also limited death sentences under the felony-murder rule, in which accomplices are convicted of murder even if another person actually killed the victim when it was committed as part of a felony such as kidnapping or robbery. In Enmund v. Florida (1982), the Supreme Court ruled that minor accomplices could not be sentenced to death under the felony-murder rule. However, in Tison v. Arizona (1987), the Court upheld the death penalty for a major participant in a felony murder who was reckless to human life.

The Supreme Court has also considered whether the death penalty is unconstitutional when applied to certain types of defendants. The Court has allowed capital punishment for juveniles sixteen and older. In 1989, the Supreme Court ruled that a national consensus did not exist against executing the mentally retarded. However, in Atkins u Virginia (2002), the Court noted the increasing number of states that barred capital punishment for the mentally retarded and concluded that such punishment would now be “unusual” and violate the “evolving standards of decency” of the Eighth Amendment.

Because death is different, the ultimate penalty that society can impose, the Supreme Court has ruled that capital punishment cases require extraordinary procedures. Like other defendants, death row inmates can appeal their sentences directly through state courts where most murder trials occur-or indirectly through federal courts if their constitutional rights have been violated. These indirect appeals are known as petitions for habeas corpus, which can last many years in capital cases. The Supreme Court upheld limits on habeas corpus petitions under the Antiterrorism and Effective Death Penalty Act in Felker v. Turpin (1996), ruling that the law did not violate Article I’s protection of habeas corpus. Congress passed the law to reduce delays in executions, which it said were undermining the impact of the death penalty.

However, Americans are also concerned about the increasing number of death row inmates who have been released after evidence of their innocence has been discovered. Some defendants have come within days of being executed before they were exonerated. As of 2002, more than one hundred death row inmates have been released due to evidence of their innocence since 1973. Such cases prove that me risk of executing innocent defendants is too high, say critics of the death penalty. But supporters of capital punishment argue that these cases demonstrate mat the legal system can correct its mistakes.

In Callins v. Collins (1994), Justice Harry Blackmun stated that, after twenty years of trying to “tinker widi the machinery of deadi,” he had concluded that it was impossible to fairly and accurately administer the death penalty. But Justice Antonin Scalia pointed out that the Fifth Amendment of the Constitution contained specific references to the death penalty, so it clearly did not violate “cruel and unusual punishment.”

According to Justice Scalia, the proper recourse for innocent death row inmates who had exhausted their court appeals was a clemency petition to the executive branch.

Punishments Other Than Death

Under the Eighth Amendment, punishments must generally be proportional to the crime committed.

Therefore, in Trop v. Dulles the Supreme Court ruled that depriving an army deserter of citizenship was cruel and unusual punishment. However, the Court has rarely struck down sentences for noncapital crimes as disproportionate, instead deferring to the judgment of legislators. In Harmelin v. Michigan (1991), for example, the Court refused to overturn a mandatory life sentence without parole for a first-time offender who used cocaine.

The Supreme Court has also ruled mat the Eighth Amendment prohibits inhumane prison conditions. But the Court will not intervene unless prisons are deplorable, not merely uncomfortable. Prisons are also responsible for inmates’ health care, held the Court in Estelle v. Gamble (1976). In addition, prison officials must not disregard the physical safety of inmates. Some prisoner advocates argue that rape among inmates has become so common that prison officials are allowing it in violation of the Eighth Amendment. They say that rape and the possibility of death by AIDS definitely constitute cruel and unusual punishment.

One area where the Supreme Court has not extended Eighth Amendment protection is the public schools. In Ingraham v. Wright (1977), the Court ruled that schools are not constitutionally forbidden to use corporal punishment, even if the student needs medical attention as a result. Unlike prisoners, said the Court, schoolchildren had recourse for excessive punishment through the community’s supervision of the schools.