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

Guest Essayist: Matthew Mehan, Publius Fellow and U.S. History Teacher

Amendment VIII:

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

The adoption of this terse amendment, the shortest of them all, inspired very little debate among our founding fathers. These sixteen words reflect the hard-won and long-defended consensus of free society that just government remains so only if its punishments correspond proportionally to the crimes committed.  The 8th Amendment stands as a testament to the humanism of our Constitution, which makes clear that the government of a free people must be known not for its severity, but instead for its measured humanity.

Each of the three components of the amendment aim to limit one of the government’s discretionary powers: (1) setting bail; (2) imposing fines; and (3) sentencing.  The amendment implicitly recommends that the legislature specify proportional guidelines for these broad powers: how much bail; how high the fines; and how long or difficult the sentence.  The wisdom of having such an amendment stems from abuse of these powers dating back as far as the expansion of monarchical courts under William the Conqueror. William’s descendent, King John, saw these powers greatly limited by the Magna Charta, which sought to reign in the king’s unlawful use of royal courts.  And the language of the 8th Amendment is taken almost word for word from the 1689 English Bill of Rights, which reaffirmed these limitations on the monarch, in this case, the Stuart dynasts.  And in our own day, for the “excessive fines” clause to be applied, the Supreme Court ruled as recently as 1993 that “there must be a payment to a sovereign as punishment for some offense.”  From its historical origins to the present day, the amendment’s primary focus has remained the same: the restriction of the sovereign government in favor of the liberty of a defendant.  The 8th Amendment goes further than enumerate a federal power; it advises the legislature to do what the common law has always done, namely specify, as Blackstone put it, “the nature, though not the quantity or degree, of punishment…for every offence….”  By doing so, the amendment protects the liberty of all, “for,” as Blackstone continues, “if judgments were to be the private opinions of the judge, men would then be slaves to their magistrates; and would live in society, without knowing exactly the conditions and obligations which it lays them under.”

A humane and just government, therefore, must permit reasonable accommodation for pre-trial liberty for those accused of a crime but not yet convicted.  Thus, (1) “excessive bail shall not be required” because, if a citizen is innocent until proven guilty, then the citizen ought to have his or her liberty by means of reasonable bail even when accused.  The Supreme Court has upheld some exceptions for those accused of particularly dangerous crimes, but overall, the amendment and subsequent case law have protected citizens’ pre-trial liberty and right to post bail.

A humane and just government must not (2) impose “excessive fines.”  The 8th Amendment has been used by the courts to limit fines and penalties on the basis established in a 1998 case that those fines were “grossly disproportional to the gravity of a defendant’s offense.”  By limiting the potentially capricious punishment of excessive fines, the amendment has made for a more peaceful and predictable civil society, one freer from unforeseen onerous fines, which confiscate property and lead to possible imprisonment.

And finally, a humane and just government does not (3) inflict “cruel and unusual punishment.”  The Supreme Court first saw this clause as a bar on brutal punishments extant at the time of the founders, horrors such as disembowelment or being dragged to execution.  But the Warren court and due process has expanded this clause’s application to a whole host of considerations as to what constitutes “cruel and unusual punishment,” including deciding whether capital punishment is a disproportional penalty for certain crimes.  While perhaps our founders would not have approved of its modern and wider application, nevertheless, the 8th amendment continues to function as a warning to government lest it become too severe or capricious in its task of punishment.

Matthew Mehan is, among other things, a U.S. history teacher in Washington DC.

April 9, 2012

Essay #36

Guest Essayist: Nathaniel Stewart, Attorney


Amendment VIII:

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

Early Origins of the 8th Amendment’s

“Cruel and Unusual Punishments” Clause

Like many provisions of the Constitution and the Bill of Rights, the protection against “cruel and unusual punishments” prescribed in the 8th Amendment has deep English roots.  The text of the 8th Amendment is taken almost verbatim from England’s Declaration of Rights of 1689, an indictment of King James II that reads rather like our own Declaration of Independence and accuses the king and his government of mistreating the people and subverting the law.

Historians generally agree that the “cruel and unusual punishments” clause of the English Declaration of Rights was in response to abuses by the infamous Lord Chief Justice Jeffreys of the King’s Bench during James II’s reign.  Lord Chief Justice Jeffreys presided over the “Bloody Assizes”—a special commission that tried, convicted, and executed hundreds of suspected rebels following the failed rebellion in 1685.  The Bloody Assizes carried out punishments that included drawing and quartering, burning, beheading, and disemboweling those convicted.  But these punishments, as vicious as they might sound to us today, were specifically authorized by law at the time.  More recent scholarship suggests that it was not the nature of the punishments that led to the Declaration of Rights provision, but the arbitrary sentencing power that Jeffreys had used in sentencing those found guilty.  Many believed that Jeffreys was merely inventing special penalties for enemies of the king, and that those penalties and punishments were not authorized by the common law or by statute.

Thus, the Declaration of Rights objects to the “illegal and cruel punishments inflicted . . . All which are utterly and directly contrary to the known laws and statutes and freedom of this realm.”  1 Wm. & Mary, Sess. 2, ch. 2 (1689).  Legal discussions at the time of the Declaration of Rights indicated that a punishment was not considered wrong only because it was severe or even disproportionate to the crime; but a punishment was “cruel and unusual” if it was “out of the Judges’ power,” “contrary to the law and ancient practice,” “without precedent,” “illegal,” or imposed by “pretence to a discretionary power.”  The phrase “cruel and unusual” was often synonymous with “cruel and illegal.”

By the time of America’s founding many of the colonies had constitutions with provisions very similar to the “cruel and unusual punishments” clause of England’s Declaration of Rights.  In 1791, five States prohibited “cruel or unusual punishments, and two more States prohibited “cruel” punishments.  The U.S. Constitution’s Bill of Rights ultimately followed Virginia’s prohibition of “cruel and unusual punishments.”

Because there were no federal common-law punishments, the clause effectively served as a check upon the Congress, not upon federal judges, so there is some question as whether “unusual punishment” continued to mean a punishment “contrary to law” as it had meant under English law.  Instead, “unusual punishment” came to mean one that “does not occur in ordinary practice.”  Webster’s American Dictionary (1828).  It is widely believed that by forbidding “cruel and unusual punishments,” the 8th Amendment prevents Congress from authorizing particular kinds or modes of punishment, especially cruel methods of punishment that are not regularly or customarily used.

The debates in the state ratifying conventions support the idea that the “cruel and unusual punishments” clause was designed to prohibit certain forms of punishment.  In the Massachusetts Convention in 1788, for example, one objection to the Constitution (without a Bill of Rights) was that Congress was “nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on it, but that racks and gibbets may be amongst the most mild instruments of discipline.”  2 J. Elliot, Debates on the Federal Constitution 111 (2d ed. 1854).  A Bill of Rights was needed, they argued, in order to prevent Congress from “inventing” such punishments and resorting to vicious types of discipline.

Early commentaries on the Amendment also indicate that it was designed to outlaw certain types of punishment:  “The prohibition of cruel and unusual punishments, marks the improved spirit of the age, which would not tolerate the use of the rack or the stake, or any of those horrid modes of torture, devised by human ingenuity for the gratification of fiendish passion.”  J. Bayard, A Brief Exposition of the Constitution of the United States 154 (1840).  And, as Justice Story observed in his Commentaries on the Constitution, the 8th Amendment was “adopted as an admonition to all departments of the national government, to warn them against such violent proceedings, as had taken place in England in the arbitrary reigns of some of the Stuarts.”  3 J. Story, Commentaries of on the Constitution of the United States § 1896 (1833).

As the history and origins of the 8th Amendment make clear, criminal punishments should not be arbitrary or exacted by judges contrary to the law; and neither should they be “unusual” or torturous methods of discipline that are beyond the ordinary forms of reproach.  The 8th Amendment helps to protect against such punishments, and is yet another example of the Founders drawing upon their understanding of the rights of Englishmen, adapting the rights and laws of England to their own circumstance and government, and learning the lessons of history so as not to repeat the same mistakes.

Nathaniel Stewart is an attorney in Washington, D.C.

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April 6, 2012

Essay # 35

Guest Essayist: Allison R. Hayward, Vice President of Policy at the Center for Competitive Politics


Amendment VIII:

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

Excessive Fines Clause

The Eighth Amendment declares excessive fines to be unconstitutional.   Along with the other clauses of the amendment, which prohibit excessive bail and cruel and unusual punishment, this clause sought to protect Americans against prosecutorial overreach by the government.

The Eighth Amendment echoed Art I, § 9, of the Virginia Declaration of Rights, which itself appropriated from the English Bill of Rights. Section 10 of the English Bill of Rights of 1689, like our Eighth Amendment, stated that “excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.”

The 1689 English version was meant to curb abuses by English judges. During the reigns of the Stuarts, judges had imposed heavy fines on the King’s enemies.  In the 1680’s in particular, the use of fines became even more excessive and selective, and opponents of the King who could not pay were imprisoned.  The authors of the 1689 Bill of Rights knew this only too well – having been themselves subjected to selective and heavy fines by the King’s judges.

The Eighth Amendment in general received little debate in the First Congress, and the Excessive Fines Clause received even less attention. Perhaps this is because the wisdom of these limitations was obvious to the Framers; at least eight of the original States that ratified the Constitution had some equivalent of the Excessive Fines Clause in their respective Declarations of Rights or State Constitutions.

Even so, there are two obvious ambiguities in the clause that have required interpretation.  First, what kinds of payments are “fines?”  Second, what fines should be considered “excessive?”

I.      What is a fine?

Given that the Eighth Amendment is identical to a clause from the English Bill of rights, it is useful to know what a “fine” was thought to be in English law.  English cases immediately prior to the enactment of the English Bill of Rights stressed the difference between civil damages and criminal fines. Lord Townsend v. Hughes, 2 Mod. 150, 86 Eng. Rep. 994 (C. P. 1677).  A fine was defined as a payment to the state, not a state-ordered payment to another private citizen.  Accordingly, court-ordered damages paid to a private litigant, even punitive damages, have been held not to implicate the Eighth Amendment.  Browning-Ferris Industries v. Kelco Disposal, 492 US 257 (1989). However, asset forfeiture, which requires property to be awarded to the government as punishment for some offense, is subject to the Eighth Amendment.  Austin v. United States, 509 U.S. 602, 622 (1993).

II.     When is a fine “excessive?”

Whether a fine is excessive depends on its proportionality.  That is, the amount of the forfeiture must bear some relationship to the gravity of the offense that it is intended to punish. Austin v. United States, 509 U. S., at 622-623.  In the case of a monetary fine, a court would consider whether the value of the fine is in relation to the seriousness of the offense.  A hypothetical extreme example would be exacting a million dollar fine to punish jaywalking.  Closer cases are naturally harder to judge.

Unfortunately, the fines English judges had imposed were never described with much specificity.  None of these sources suggests how out of proportion a fine must be in order to be deemed constitutionally excessive.

The Supreme Court has addressed this issue in a handful of cases.  It has concluded that a forfeiture of hundreds of thousands of dollars is disproportionate when a defendant is guilty only of a failure to declare the funds when leaving the country.

United States v. Bajakajian, 524 U.S. 321 (1998). In the in rem asset forfeiture context, Justice Scalia has observed that the Constitution should prohibit seizure of property that cannot properly be regarded as an instrumentality of the offense— for example the building in which an isolated drug sale happens to occur. For him, the right question here is not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense.

The Supreme Court has noted that legislatures have the primary duty to decide what fines are proportionate, and deserve deference to make such standards. The Court’s present interpretation of the excessive fines clause will reject an unconstitutionally excessive fine only when the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense.  As a result, the Eighth Amendment protects citizens against the most outrageous fines, but not against large but less extreme fines.

For further reading: Laurence Claus, Methodology, Proportionality, Equality: Which Moral Question Does the Eighth Amendment Pose? 31 Harvard J. of Law and Pub. Pol’y 38 (2008).

Allison Hayward graduated from Stanford University with degrees in political science and economics, and received her law degree from the University of California, Davis.  She clerked for Judge Danny J. Boggs of the United States Court of Appeals for the Sixth Circuit.  Hayward is Chairman of the Federalist Society’s Free Speech and Election Law Practice Group. She also serves on the Board of the Office of Congressional Ethics.  She is an active member of the California and Washington, D.C. bars, and she is a certified FINRA arbitrator.

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April 5, 2012

Essay #34


Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation


Amendment VIII:

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

Amendment VIII: Reasonable Bail

After arrest, a criminal defendant can be released if he offers some security to ensure he will appear at trial. The release and required security are called bail. Bail protects “the defendant’s interest in pretrial liberty and society’s interest in assuring the defendant’s presence at trial.” The idea is to set bail high enough that the person charged with a crime would not want to risk forfeiting it by refusing to show up at trial but not so high that a person can’t pay and go about life as normally as possible during the interim between arrest and trial. Other considerations will be the risk that the defendant would commit the same crime again while on bail. Donald B. Verrilli, Jr., “The Eighth Amendment and the Right to Bail: Historical Perspectives” Columbia Law Review, vol. 82, p. 328 (1982).

In some circumstances, the crime is so serious or the risk that the defendant would flee so great that bail would be entirely denied. For instance, in the past month or so, a British citizen accused of facilitating weapons shipments to Iran was denied bail (http://www.forbes.com/sites/walterpavlo/2012/03/05/extradited-u-k-citizen-chris-tappin-denied-bail/) as was the doctor accused of causing the death of a pop musician (http://abcnews.go.com/US/michael-jacksons-doctor-conrad-murray-denied-bail/story?id=15784437#.T3C6BTFBt2A).

The disputes lingering from the English Civil War and simmering religious hostility led to the “abdication” (actually flight from England after it was invaded by William of Orange at the request of some of the English nobility) of James II as King of England in 1688. When Parliament formally invited William and Mary to reign as joint monarchs, they drafted the Bill of Rights of 1689 (http://avalon.law.yale.edu/17th_century/england.asp) as a formal statement of the rights of Englishmen they expected the new monarchs to respect and protect. They also laid out some complaints against James including: “excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects.” They thus specified, “That excessive bail ought not to be required.”

Thus, the American colonists would have had an expectation, as Englishmen, of protection from excessive bail. The 1776 constitutions of a number of states specified protection of this right. The constitutions of Virginia, Delaware, and Pennsylvania enacted that year all prohibited “excessive bail.”

Given this history, it is not surprising that when James Madison was compiling proposals for a national Bill of Rights he would have included this requirement in what became the Eighth Amendment.

Of course, the key word is “excessive.” Requiring $1 million bail before releasing the celebrity who gets himself arrested on government property to draw attention to a cause is probably excessive. Someone charged of a string of armed bank robberies, however, could probably expect that kind of bail if flight risk is a consideration (although he may be able to afford it if guilty).

A recent news story (http://www.syracuse.com/news/index.ssf/2012/03/judge_questions_then_lowers_1.html) describes a situation where a man was stopped for traffic violations, searched and when a loaded weapon was found in his car, charged with felony gun possession crime. The bail was set at $1,000,000; another judge questioned that amount and the prosecutor asked for $50,000. The judge set bail at $10,000. Obviously, what some government officials find “excessive” will vary.

The Framers would insist that judges employ common-sense and fairness. That’s more likely where lawbreaking is not widespread and where citizens hold their leaders to account. Thus do rights on paper become rights in fact.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

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April 4, 2012

Essay # 33


Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment VIII

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

The text of the Eighth Amendment, concise and plain, masks the fluidity that the Supreme Court has assigned to its words. The more intensely scrutinized portion, by far, is the prohibition against cruel and unusual punishments. There are two applications that have been particularly significant in recent years, the constitutionality of the death penalty and the application of the amendment to “enhanced interrogations.”

It would be fatuous for opponents of the death penalty to claim that the Framers understood the death penalty to be unconstitutional. The Constitution’s text belies such an assertion, because the Fifth Amendment three times makes it plain that the death penalty is a proper punishment for crime: “No person shall be held to answer for a capital…crime, unless on…indictment of a Grand Jury…; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…, nor be deprived of life, liberty, or property, without due process of law.” Moreover, the common law at various times recognized capital punishment for a couple of hundred criminal offense.  Given the additional availability of whipping, branding, ear cropping, and other such forms of corporal chastisement, the Framers’ understanding of “cruel and unusual punishment” was restricted to those torturous punishments that stood out for their infliction of extended periods of particularly gruesome pain for no end other than the infliction of that pain, and that were applied with such extreme rarity as to undercut any realistic claim that they served a moral purpose such as retributive justice or moral reformation. An example would be the rarely-used, but then still available, punishment of drawing and quartering applied in exceptional treason cases in Britain.

To further the cause of modern death penalty abolitionists, the Court was obliged to impress upon the Eighth Amendment an interpretive mechanism that could supersede the specific textual recognition of the death penalty’s legitimacy. That mechanism is the judicial matrix of “evolving standards of societal decency” that would “guide” the Court’s interpretation of the Eighth Amendment.  Using “cruel” in a qualitative sense and “unusual” in a quantitative sense, this approach allows for a judicial finding that punishments that fall into comparative disuse, either by change in legislation or even through failure of prosecutors to seek the death penalty or of juries to impose it on a regular basis for certain crimes, become violations of the Eighth Amendment. Particularly galling to the opponents of this approach, such as Justice Scalia, is that the procedural hurdles created for the imposition of the penalty in past cases themselves are much to blame for the (comparatively) infrequent use of the death penalty.

Although the Court has not finally found the death penalty to violate the Eighth Amendment, the end is clear. Death penalty jurisprudence has been one instance of ad hoc judicial law-making after another.  Capital punishment, the Court once opined, is applied too haphazardly.  When states responded with mandatory death penalty laws and other restrictions on jury discretion, the Court found those wanting in that juries must be able to exercise discretion to impose the death penalty or not.  However, further decisions then determined that the jury discretion must be subject to specific guidance. Moreover, the judge must have the power to override a jury’s imposition of the death sentence, but not the other way around.  Juries must be able to hear any and all mitigating personal evidence for the defendant, dredging up every aspect of the defendant’s life that would place some blame for the crime, somehow, on some person other than the defendant.  On the other hand, aggravating evidence, such as about the victim whose life was snuffed out, had to be very carefully limited.

As to the “evolving standards of decency” test, the Court once declared that the Eighth Amendment must not cut off the normal democratic process. Yet, more recently, the Court, led by Justice Kennedy, has taken great pains to do just that, overturning laws that provided the death penalty for older juveniles who commit particularly heinous murders and for non-homicide crimes. Kennedy, in particular, while dutifully declaring the contrary, seems intent on imposing through the Constitution his own vision of the moral and “decent” society. The Court earlier pronounced that the “Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling States from giving effect to altered beliefs and responding to changed social conditions.” Once more assuming the role of philosopher-king, Kennedy in the last capital punishment case, Kennedy v. Louisiana (2008), rejected the idea that the death penalty could be expanded (though, in fact, the law at issue there, capital punishment for aggravated child rape, did not “expand” the death penalty).  After all, that would not fit Kennedy’s Hegelian march of “evolving standards of decency…on the way to full progress and mature judgment.” So, there is only one direction of evolution, regardless of what the people might enact, one that leads, Kennedy all but assured the abolitionists, to the eventual demise of the death penalty.

In Roper v. Illinois (2005), the juvenile death penalty case, Justice Kennedy resorted to comparing the United States unfavorably with European systems, as well as with other, even less savory, exemplars of justice, and, as he has done in some other areas of constitutional law, invoked the decisions of his fellow Platonic guardians on tribunals overseas.  Due to the rebukes launched by Justice Scalia in his dissents, the Court is less inclined these days to feature that line of internationalist argumentation as a basis for guidance of the American Constitution in a direction Justice Kennedy finds to be more civilized.

International standards have also been used in attempts to limit the use of techniques to interrogate suspected terrorists. Leaving aside specific anti-torture statutes or treaty obligations, note that the Eighth Amendment itself only prohibits cruel and unusual “punishment.” Not only is this limited to torture and other extreme actions; the Court in past cases repeatedly has held that it applies only to punishment, not to other actions by the government. Hence the challenged behavior must be directed at “punishing” the individual. This distinction between punishment and other objectives in the use of force against prisoners is one long established in many Western systems of law, and one that the Framers clearly understood.

If a prisoner brings a claim that excessive force was used in violation of the Eighth Amendment, he must show that this was for the purpose of punishment. If the force or condition of confinement was for another purpose, the Eighth Amendment is not implicated.  Thus, the state of mind of the persons conducting the interrogation becomes important. Did they do so for purpose of discipline, security, or information gathering, or did they do so simply to punish? That state of mind can be demonstrated circumstantially by a number of factors, such as the asserted purpose of the treatment and the degree of force used in relation to the many varied circumstances that triggered the interrogation, an evaluation that implicates the proportionality principle that lurks in Eighth Amendment jurisprudence. Only if the actions go beyond the asserted disciplinary or investigatory needs, might the treatment amount to cruel and unusual punishment. As the Court has said in several cases, the prisoner must show that the government agent acted “maliciously and sadistically for the very purpose of causing harm.”

The prisoner might assert claims that the government violated Fourth Amendment standards against unreasonable searches and seizures, or, more likely, nebulous Fifth Amendment due process standards against treatment that “shocks the conscience.” Even if a foreign terror suspect kept overseas is entitled to those constitutional protections as a matter of right (an issue not resolved even by the Court’s Boumediene decision that, for the first time, granted such detainees access to the writ of habeas corpus), they might not help him.  The “shocks-the-conscience” test is particularly difficult to confine, and the Court employs a utilitarian approach. The Justices have made it clear that it is not just the severity of the method, but the degree of necessity for the challenged action, that will determine whether the consciences of at least five of them are shocked.  In any event, whether or not the justices are suitably shocked under the Fifth Amendment, the Eighth Amendment does not apply to careful methods used demonstrably for the purpose of extracting information.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.