Bill of Rights at 225: Limits on bail, fines, and punishments

Tenth in a 12-part series on the 10 amendments of the Bill of Rights, running through Thursday. Today: The Eighth Amendment.

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Some parts of the Constitution were written in reaction against Great Britain, for example, the Third Amendment's prohibition on quartering soldiers. But other parts relied upon English precedents. The Eighth Amendment is one of those.

The Eighth Amendment forbids four kinds of punishments: excessive bail, excessive fines, cruel punishments, and unusual punishments.

None of the terms are self-defining. Consequently, the courts have had some interpretive difficulty in defining the clause.

The amendment derives from a similar protection in the English Bill of Rights (1689). But the purpose of this earlier English version was to prevent politically motivated punishments. Translating that prohibition into a protection for the ordinary person charged or convicted of a crime is a different challenge.

The courts have had three different approaches in applying the amendment:

  • Originalist, determining what the ratifying generation regarded as excessive, cruel, or unusual;
  • Conventional, relying upon whatever any generation at the time thinks of the terms;
  • Impliedly inherent, or a natural rights or a natural law basis of what would be an unacceptable manner of treating any human person at any time.

The English version of the excessive bail clause was designed to prevent courts from setting a bail so high as to effectuate an imprisonment of a political opponent of the Crown. American courts have presumed that there is a right to bail for anyone accused of a crime, for no one should be deprived of his liberty solely on the basis of a yet unproven charge. Without the opportunity for bail, arrest turns into a pre-trial, and perhaps lengthy, detention. The purpose of bail, then, is solely to guarantee the appearance at trial of the defendant, and courts make that determination on a case-by-case basis.

The courts have generally been deferential, however, to legislative determinations as to when bail may be denied in particular circumstances, such as capital crimes, or a charge of a particularly serious crime by persons who might pose a danger, or for those with alleged terrorist connections.

In England, the excessive fines clause was a corrective to the practice of levying a high fine against an opponent of the king, thus allowing him to be imprisoned for non-payment. Here too, American courts have accorded deference to laws that set the level of fines for offenses. The Supreme Court has declared that the Eighth Amendment only forbids fines that are "grossly disproportionate to the gravity of a defendant's offense."

The English version of the cruel and unusual punishments clause was also anti-royal. It forbade the king (or the king's courts) from imposing a punishment that Parliament had not authorized. In the American colonies, the prohibition also extended to cruel or tortuous punishments such as drawing and quartering, and the Supreme Court early on interpreted the amendment to apply only to those punishments regarded as cruel at the time of the founding. Novel punishments, such as execution by firing squad or electrocution were accordingly approved. But permanent shackling of a convicted person or imposing severely painful punishment has been voided as cruel. At present, there is much debate over whether execution by lethal injection, is, in itself, or by the manner in which it is administered, a "cruel" punishment.

Some courts suggested that the prohibition against unusual punishments would apply to new measures that were excessive or disproportionate, even if they were not, in their nature, cruel or tortuous. On that question, the Supreme Court's views have been divided and confusing. Chief Justice Earl Warren rejected an originalist understanding of the clause in favor of a conventional view, namely, that the clause forbids punishments contrary to the community's "evolving standards of decency." Under a number of approaches, the court in Furman v. Georgia (1972) forbade the imposition of capital punishment if it were done so "arbitrarily." A number of justices opined that the clause would forbid all forms of capital punishment.

Although the court in Gregg v. Georgia (1976) explicitly rejected the idea that the clause forbids all forms of capital punishment, shifting majorities have subsequently established the principle that the unusual punishments clause does indeed forbid "grossly" disproportionate penalties. Application of the standard, however, has been vigorously contested within the court and has produced few bright line rules.

The court has struck down capital punishment or even life sentences without possibility of parole for juveniles convicted of homicide. It forbade execution for rape where no life had been taken. The court's decisions on the question of executing people with diminished capacity point to a restriction there too.

The clause also forbids removing a person's citizenship as punishment, or sentencing a person merely for addiction, though imprisonment for public intoxication is allowed.

Most significantly, the court has imposed special procedures on lower courts before a sentence of death can be imposed. There must be a separate hearing before a jury can determine that execution is the appropriate remedy. The statute establishing the particular standards meriting execution, usually of "aggravating circumstances," must be clearly understandable. It is in these procedural requirements that most of the judicial restrictions on the actual imposition of capital punishment have occurred.

David F. Forte is professor of law at Cleveland State University, and Garwood visiting professor at Princeton University. He is the senior editor of "The Heritage Guide to the Constitution."

Tomorrow: The Ninth Amendment.