“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Ever since the Eighth Amendment was ratified by the states in 1791, it has been a key part of our Constitution. The Eighth Amendment has protected our people from many things, including an overly high bail or “unnatural” punishments. It has ensured that in civil matters, as well as criminal cases, the people of America are protected from an overly high bail and cruel and unusual punishments. Today, the Eighth Amendment has stirred up many controversies with its many paths of interpretation, but it still remains an important part of our government under the Constitution.
The Eighth Amendment has brought up many controversies with its rather general meaning. It says that ‘cruel and unusual’ punishments are not allowed, but what exactly is cruel and unusual? The dictionary definition of cruel is ‘so intense as to cause extreme suffering’.1 Does that mean no torture or branding? Or were they referring to something totally different? There is no way for us to explain this part of the Eighth Amendment because we simply do not know. Things that were totally normal in the 1800’s seem awful now, such as hanging and cutting off limbs. But now, we use the electric chair to kill people. How is that not cruel and unusual? It is up for interpretation.
The other half of the Eighth Amendment states that “Excessive bail shall not be required”. To first understand this, you must know what bail is. Bail is a sum of money that a criminal defendant gives to the court to gain release from jail until the trial. The defendant must show up at trial to get their money back; if they do not come, then they shall have to give up the money that they paid and face additional charges. So, really all the Eighth Amendment is saying is that millions of dollars should not be the bail set for someone accused of pick pocketing two dollars, nor of someone who stole a banana from a stand. All it is saying is that the punishment must fit the crime. This amendment simply protects the rights of the people.
The idea for the Eighth Amendment came from the English Magna Carta in the 1200’s and the English Bill of Rights. The history of bail goes back to approximately 686, when the English Anglo-Saxon Kings, Eadric and Hlorhaere, decided criminals should have to pay a “bohr” or blood price to the family of the victim. If the accused was found innocent, then the money was returned. The system of bail we use today was first used in around ninth century Britain. Then though there were no laws saying how bail could be used and the practice of it was badly abused. Then, in 1627, the English Parliament passed the Petition of Rights, which required the court to have some evidence of the person having committed a crime before jailing the person. This was the first step to improvement. The next step came in 1679, when the Habeas Corpus Act gave a right to bail under certain circumstances to criminal suspects. The final step came in 1688, when England’s Bill of Rights prohibited excessive bail.
Cruel and unusual punishments have a long background; in history, it is almost certain that there has never been a time that there were no cruel and unusual punishments. However, this does not mean that we should try and continue doing this, and that is what the members of Congress realized. It was important to include these two subjects in the Bill of Rights because even back then, they were causing stirs. The bail was causing the most trouble in 1789; outrageous bails were being charged for small crimes and the members of Congress knew that was a bad thing. They also knew that we would need more ‘normal’ punishments to help us survive as a country.
The members of Congress all agreed on this subject most heartily; in fact, the only record of debate that came up was between William Smith of South Carolina and Samuel Livermore of New Hampshire. Smith said that the wording of the amendment was too indefinite, and Livermore replied saying that he thought the amendment humane but not necessary. He also forsaw the arguments that would surround the amendment, and wondered who would be the judge of those arguments surrounding the amendment? What does the amendment mean? He decided that sometimes, ‘cruel and unusual’ punishments are needed. The rest of Congress ignored him and the Eighth Amendment passed by a large majority.
There have been many recent controversies about the Eighth Amendment. A very interesting recent one is the disagreement about the death penalty. Many people think the death penalty is very cruel and unusual, but others think it is not. Those who think the death penalty is not cruel and unusual think so for different reasons. “The death penalty has been employed throughout our history,”2 said one source. Another said “The death penalty is very revengeful, which may be part of the reason people like it.”3 Because of these reasons and many more, polls show that more and more people support the death penalty year by year. Of course, there are others who believe the death penalty is cruel and unusual.
“If we kill Them for killing Us, aren’t we just doing the same thing they did to us? If so, why aren’t We killed?”4 One source asks. “There are only 3 countries in the world that kill people under the age of 16. America is one of them. The death penalty is a completely unnecessary thing. What if they got it wrong? What if the person they killed was innocent?”5 There are no answers to these questions. Each side of this battle has reasons, and neither side is prepared to give up their views. Because of this, the death penalty may be a controversy for quite some time.
Of course, there have been many other debates questioning what fits under the category of “cruel and unusual punishments” and “excessive bail”. In the case Ingraham vs. Wright in 1977, the spanking of children in public schools was debated to see if that was considered a cruel and unusual punishment for school children. Some thought that it was awful their children where receiving beatings for mistakes, but others thought that it was a good way to make sure they didn’t do it again. The Supreme Court ruled that the Eighth Amendment does not prohibit “disciplinary corporal punishment”6 of children.
Another interesting thing the Eighth Amendment has brought up recently is the rights of prisoners. Until around a century after the Bill of Rights was written, prisoners were not even considered citizens. Then, around 1970, people started to realize that prisoners were people, and that the Constitution and Bill of Rights applied to them as well. The States started to study their prisons, and what goes on behind prison walls. The things they found were quite disturbing. They found overcrowding, poor environmental conditions, idleness, levels of violence, racism, medical and mental health care needs, and restrictions on visitation. People found that being placed in prison had, in fact, turned into a cruel and unusual punishment for criminals. They started to change this, and tried to make prisons safer. The Eighth Amendment helped to make our country a better, safer place for all people.
The Eighth Amendment may be the shortest amendment, but it still has proven itself to be a very important part of the Constitution ever since it was written. It has given citizens improving rights. The words of the Eighth Amendment were written for the 1700’s, but they still act as a key to insuring the fair treatment of all people, giving liberty and justice to all. The Eighth Amendment will always be up for interpretation, but it will always protect us from abuse by our own government.
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The Eighth Amendment
The 8th Amendment to the Constitution of the United
States prohibits cruel and unusual punishment, as well
as the setting of excessive bail or the imposition of
excessive fines. However, it has also been deemed
unconstitutional by the Supreme Court of the United
States (according to the Eighth Amendment)to inflict
physical damage on students in a school environment for
the purpose of discipline in most circumstances.
The 8th Amendment stipulates that bail shall not be
excessive. This is unclear as to whether or not there
is a constitutional right to bail, or only prohibits
excessive bail, if it is to be granted. The Supreme
Court has never directly addressed this interpretation
problem, because federal law has always guaranteed that
privilege in all non-capital cases (Compton"s).
Bail furthers the presumption of innocence until
guilt is absolutely proven, beyond the shadow of a
doubt. If it weren"t for bail, the accused suspect
would virtually be serving a sentence for a crime he or
she has not been convicted of committing. Excessive
bail has the same effect. The idea behind bail is to
make sure the accused is present during the trial. If
one"s bail is , in fact, excessive, the amount is set
higher than is reasonable. Logically, bail is usually
not set for an amount greater than the maximum monetary
sentence for the crime with which the defendant is being
The most widely known aspect of the eighth
amendment is the fact that it prohibits cruel and
unusual punishment. The stand for "cruel and unusual"
fluctuates, because it all is dependent upon social
issues, standards, and personal beliefs. However, there
are many generalizations that remain very clear, no
matter what the situation. Cruel and unusual punishment
is perceived as punishment that causes "an unnecessary
and wanton infliction of pain". Punishments that have
been declared entirely unconstitutional without question
by the US Supreme Court include torture and loss of
citizenship. (Garraty 155) This interpretation is
demonstrated by the Supreme Court"s rulings in the case
of Gregg vs. Georgia, in 1976. In this case the court
upheld the constitutionality of the death penalty,
defending statutes that guide judges and juries in the
decision to issue the death sentence. The Court did,
however, state that the mandatory use of the death
penalty would be prohibited under the Eighth Amendment
as cruel and unusual punishment. The defendant in this
case, Gregg, had been convicted on two counts of armed
robbery and two counts of murder. The jury was
instructed by the trial judge, who was following Georgia
state law, to return with either a decision of life
imprisonment or the death penalty. Justice Byron stated
in his opinion that Gregg had failed in his burden of
showing that the Georgia Supreme Court had not done all
it could to prevent discriminatory practices in the
forming of his sentence. This decision became the first
time the Court stated that "punishment of death does not
invariably violate the Constitution." (Bernstein 21)
The punishment also cannot be "grossly out of
proportion to the severity of the crime charged, nor can
it violate the convicted individual"s dignity. In
Rummell vs. Estelle, it was upheld that it did not
constitute "cruel and unusual punishment" to impose a
life sentence, under a recidivist statute, upon a
defendant who had been convicted, successively, of
fraudulent use of a credit card to obtain $80 worth of
goods or services, passing a forged check in the amount
of $28.36, and obtaining $120.75 by false pretenses. We
said that "one could argue without fear of contradiction
by any decision of this Court that for crimes concededly
classified as felonies, that is, as punishable by
significant terms of imprisonment in a state
penitentiary, the length of the sentence actually
imposed is purely a matter of legislative prerogative."
We specifically rejected the proposition asserted by the
dissent, that unconstitutional disproportionality could
be established by weighing three factors. (Sundquist
230) The first factor to be considered is the gravity of
the offense compared to severity of the penalty. The
second is penalties imposed within the same jurisdiction
for similar crimes. The third item to be considered is
penalties imposed in other jurisdictions for the same
As far as capital punishment is concerned, the
Eighth Amendment has been used to declare the death
penalty invalid in numerous cases. Mandatory death
penalties have repeatedly been found to violate the
Eighth Amendment, and were first found to be
unconstitutional in the cases of Roberts vs. Louisiana
and Woodson vs. North Carolina. Arbitrary death
sentences with no established criteria for application
also violate the Eighth Amendment, as was ruled in the
case of Furman vs. Georgia. In Furman vs. Georgia three
cases had been brought to the Supreme Court concerning
the death penalty and the racial biases present in the
selection process. Three juries had convicted and
imposed the death penalty on their accused without any
guidelines to go by in their decision. This case (Furman
vs. Georgia) represents the first time the Supreme Court
ruled against the death penalty. The dissenting Justices
argued that the courts had no right to challenge
legislative judgment on the effectiveness and justice of
punishments. The majority however held that the death
penalty was cruel and unusual punishment, which violated
the Eighth Amendment. Justice Thurgood Marshall went on
to attack the penalty more directly stating, "it is
excessive, unnecessary, and offensive to contemporary
values." (Garraty 157).
One of the least well known or discussed
protections the Eighth Amendment provides is its
forbiddance of corporal punishment in schools. This
means that, unless a teacher or school employee feels
that his own person, another person, or the property of
the school is in danger, he cannot use physical force as
punishment while in a school environment. This
obviously is not directly stated in the Eighth
Amendment, but it has been interpreted by the Supreme
Court that corporal punishment in schools is
unconstitutional. (Draper 82)
However, as always, the Supreme Court has the
final word in each specific case. It is their job to
look at "contemporary standards" concerning punishments,
as well as social issues, history, and jury
determinations when deciding upon the constitutionality
of all questionable penalties (83).
The Eighth Amendment (as it has been interpreted
by the US Supreme Court) protects Americans from cruel
and unusual punishment, excessive bails and fines, and
unnecessary physical chastisement in schools. However,
whether a sentence is cruel and unusual or a fine is
excessive continually remains to be determined by the
Bernstein, Richard, and Jerome Agel. Amending America.
New York: Random House, Inc, 1993.
Compton"s Interactive Encyclopedia. New York: Compton"s
NewMedia, Inc., 1995.
Draper, Thomas. Human Rights. New York: The H. W.
Wilson Company, 1982.
Garraty, John A. Quarrels That Have Shaped the
Constitution. New York: Harper & Row, 1987.
Sundquist, James L. Constitutional Reform and Effective
Government. Washington, DC: The Brookings
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