The Eighth Amendment | The National Constitution Center | US government and civics | Khan Academy
Hi, this is Kim from Khan Academy. Today, I'm learning about the Eighth Amendment to the U.S. Constitution, which prohibits the government from imposing excessive fines and bail or inflicting cruel and unusual punishment on individuals accused or convicted of a crime. But what counts as excessive or cruel and unusual?
To learn more, I sought out the help of two experts on the Eighth Amendment. John Stiniford is the Assistant Director of the Criminal Justice Center at the University of Florida Law School. John Bessler is an Associate Professor of Law at the University of Baltimore Law School.
So, Professor Bessler, why were the framers so keen to include the Eighth Amendment? Why did they want to protect these rights in particular?
Well, these rights were actually enshrined in the English Bill of Rights of 1689. So, when the Americans got into dispute with Great Britain, they decided they wanted to have the same rights that Englishmen had. And so, it was not too surprising that when George Mason actually wrote the Virginia Declaration of Rights in 1776, he looked to English law to see what rights the English had because he wanted exactly the same rights.
These 16 words in the Eighth Amendment have been subject to a lot of controversy over the years. One of the reasons that the founders wanted this was that like the English, who had problems with the monarch imposing excessive bail, excessive fines, and inflicting cruel and unusual punishments, the founders also knew that there was a risk of abuse from the government in the United States. They also wanted those rights because, originally, in the Constitution, these rights were not protected, and the Bill of Rights was ratified in 1791, which ensured that there would be protections against these cruel and unusual punishments and excessive bail and excessive fines.
If you look at the Eighth Amendment, there are three clauses, right? The excessive bail clause, the excessive fines clause, and the cruel and unusual punishments clause. These all have one thing in common, which is that these are all penalties essentially that the government inflicts on people, usually as the result of either being accused of a crime or being convicted of a crime.
So, if you've been arrested, you're waiting for trial, very often your only way to get out of jail before trial is to make bail. Of course, after you've been convicted, the court might impose a fine on you or some other kind of punishment. The Eighth Amendment is designed to prevent the government from doing things that are excessive. When the government punishes a person, that's the most coercive thing the government can do, short of war. Other than shooting you in battle, picking you up and throwing you in a jail cell is about as bad as it gets. The framers wanted to ensure that we had a constitutional protection when it comes to criminal punishment.
In many cases in the Bill of Rights, you see the framers reacting to some historical evil that they hope to prevent. For example, the Third Amendment says you can't quarter soldiers in private citizens' homes because that had been such an important tipping point in the American Revolution. Was there something that the framers had in mind as a particular historical evil that they wanted to prevent?
Well, there were some historical evils. The English Bill of Rights went into place in 1689, and there was actually a controversy in England around a person by the name of Titus Oates. Titus Oates was involved in a false accusation that resulted in the execution of 15 Catholics. The plot that he'd alleged was one to assassinate the King of England. The question is, what to do with Oates? As a moral matter, he was about as bad as it gets. English historians voted him the worst Briton of the 17th century.
The problem is that the actual crime he committed was perjury, and although his perjury resulted in the deaths of many innocent people, nonetheless, he could only be convicted of perjury, which at the time was a misdemeanor. This meant he could not be executed for his crime. When it came time for his sentencing, Chief Justice Jeffries, a famous hanging judge from English history, said to Oates, "Well, Oates, we can't take your life, we can't take your limb, but we have something special prepared for you."
What they had prepared for him was, number one, a huge fine; they fined him like 2,000 marks. They sentenced him to be dragged across the city of London while being flogged. He was dragged from Aldgate to Newgate while being flogged, and then two days later, just as the scabs were starting to form on his wounds, he was dragged back across the city from Newgate to Tyburn again while being flogged. Many people think the hope was that he would die from the flogging, but he survived this punishment, which was actually severe.
After the English Bill of Rights was promulgated, Oates's punishment was challenged. Some members of the House of Lords called the punishment barbarous, inhuman, and unchristian, and contrary to the English Bill of Rights. They said there was no precedent to warrant the punishments of whipping and committing to prison for life for the crime of perjury. This punishment was eventually remitted, in the sense that Oates was later released, although the House of Lords refused to vote to suspend the judgment against him because they hated him so much. They believed he shouldn't get the benefit of any relief but agreed that the punishment was cruel and unusual.
What's interesting is that in the debate, they said things like this punishment is contrary to law and ancient practice, it is without precedent, and it'll be a bad precedent for the future. In other words, it's cruel, and the way we know it's cruel is because it's so much harsher than has previously been inflicted for the crime of perjury. The Oates case shows us that when the words "cruel and unusual" were first used, they were used to describe punishments that are harsher than the common law would permit or harsher than long-standing prior practice would permit.
This means that, among other things, the cruel and unusual punishments clause is not limited to gruesome punishments like torture, because the punishments inflicted on Oates, although very harsh for the crime of perjury, were not as harsh as some other punishments that the common law permitted for other crimes like treason.
So that tells us a lot about the English context of cruel and unusual punishment. Do we know what "cruel and unusual" meant to the framers of the U.S. Bill of Rights?
Punishments were cruel and unusual again if they're too harsh in light of long-standing prior practice for the crime for which they’re inflicted. There's also another problem with statutory law or decisions by a judge, king, or president that is relevant when we think about the Eighth Amendment. Sometimes the government gets really mad at someone. They either think of a person as an enemy of the state and want to inflict the worst punishment possible, or perhaps there is a panic about a certain group in society. For example, American society has recently experienced panics about drug crime or sex offenses. Every time that happens, the government tries to respond with new forms of punishment that are much harsher than what came before.
The insight behind the Eighth Amendment is that when the government wants to inflict a new punishment, you have to compare it against long-standing prior practice, that is, compare it against common law. The common law was called the law of custom and long usage. If something comported with common law, it was usual; if it was contrary to common law, it was unusual. That's where we get the phrase "cruel and unusual punishments." It's basically punishments that are cruel concerning long-standing prior practice.
The basic point of the Eighth Amendment, from a historical point of view, is to prohibit the government from innovating in a cruel manner, making up new cruel punishments in response to some actual or perceived provocation by a criminal. When the U.S. Bill of Rights was adopted many years later, they had their own issues they were struggling with. The history shows that the American founders probably meant something different than the English meant because it was done over a hundred years later. However, nobody knows exactly what was meant when they adopted that wording.
For example, when the Bill was debated in Congress, a delegate from South Carolina objected to the words "nor cruel and unusual punishments" because he said the import was too indefinite. Another legislator from New Hampshire said that the clause seems to express a great deal of humanity, which, in that account, he had no objection to but as it seemed to have no meaning in it, he did not think it necessary. What is meant by the terms “excessive bail”? Who were to be the judges? What is understood by “excessive fines”? It lies for the court to determine.
That's where we are today in many ways; the court is still deciding. In this case, the U.S. Supreme Court is still deciding what the Eighth Amendment language actually means. Today, the modern case law, especially starting in the 1970s, revolved around the death penalty. The question was whether it was still okay to execute people for various crimes short of murder. Since the 1970s, the court has continued to do that in several areas. It said you can't execute the mentally disabled anymore, you can't execute minors, and you can't execute anyone for a non-homicide offense.
Although the death penalty has been limited in the name of current standards of decency, it's unclear how the court has set about to determine whether punishment meets current standards of decency. The court is kind of on its own when it declares that a punishment violates current standards of decency, despite the fact that most democratically elected legislatures approve the practice. It looks like the court's acting as a political body, which leads the court to ignore the real danger of cruelty, which is that when there's a public panic, the legislature responds by ratcheting up punishment to new and unprecedented levels.
This has happened quite a lot in the last 40 years. Every time there's a panic, you predictably see legislatures creating new punishments that are much harsher than what came before. For example, regarding sex offenders, there are now several states that impose chemical castration as punishment. Castration as a form of punishment fell out of usage in the 13th century; we are literally getting medieval on sex offenders. But the court can't do anything to stop it or, at least, it hasn't, because these are popular forms of punishment.
You know everyone hates sex offenders. The UN has decided that anything more than 15 days of solitary confinement should not be permitted. Justice Anthony Kennedy raised the issue of solitary confinement in a recent opinion he authored for the Supreme Court. He discussed how long people spend in solitary confinement in American prisons, including on death row. There are cases where people have spent not just years but sometimes decades on death row. Justice Breyer recently wrote a dissent in a case where the person had been on death row for more than 40 years—literally four decades in very harsh conditions of confinement.
Other countries have decided that is not something they want to permit and have sought a rule that anyone on death row for a certain number of years would have their sentence commuted to a life sentence because of the psychological aspect of waiting for one's own death.
In the Bill of Rights, this is the last of four amendments concerned with protections for the accused. So why do you think there's so much in the Bill of Rights about the justice system? Were the framers particularly interested in making sure the accused had rights?
Yeah, they were, and in particular, Americans were devoted to the idea of common law as a source of rights. In fact, that’s why we had the American Revolution in the first place—England was denying Americans common law rights like the right not to be taxed without representation in Parliament, but also, more specifically, the right to a jury trial in criminal cases. Americans wanted to ensure that when the U.S. Constitution was adopted, those common law rights that had built up over time in England would be preserved in the new American constitutional order. Many of those rights had to do with criminal law, both criminal procedures and, to some degree, substantive criminal law, and, of course, criminal punishments.
The reason gets back to what I said at the beginning. When the government punishes someone, that’s about the worst thing it can do. The early Americans who framed the Constitution were very concerned with liberty. They wanted to make sure the government would preserve their liberty and protect their liberty, not become tyrannical. One of the main ways they wanted to ensure this happened was by limiting the power of the government to punish whoever it wanted for any reason.
The majority of protections in the Bill of Rights have to do with the protections for criminal defendants. What about excessive bail and excessive fines? How can we define what kind of financial penalty is proportionate to a crime?
The courts have said essentially they've looked at dictionary definitions. "Excessive" means more than is necessary. One of the core principles goes back to Beccaria's work in the 1760s. He talked about a scale of crimes and a scale of punishments, saying that there should be proportionality between the two. That proportionality principle is one we’re still wrestling with today.
The point of bail is not to punish someone but to ensure that they will appear at trial. The amount of bail doesn't depend so much on what crime you committed but on your financial resources. The amount of money necessary to make sure that a poor man appears at trial is probably much lower than the amount of money necessary to ensure that a rich man appears. It’s a standard that depends on the nature of the crime but also on the nature of the offender.
I imagine that what seemed like cruel and unusual punishment in the 18th century might not be what we consider cruel and unusual today. For example, we don't whip as a punishment anymore. How has what counts as cruel and unusual punishment changed over time?
The law changes gradually over time, as you know. Looking back, they had a large collection of gruesome punishments in the 18th century. They had non-lethal corporal punishments; they used things like branding people, and of course, whipping slaves back then. Slavery was still around; this was well before the Civil War ended that institution. We also had things like ear cropping. In the Crimes Act of 1790, which passed the year before ratification of the Eighth Amendment, Congress authorized public whipping, lashing of people, and also authorized the pillory—the same punishment used against Titus Oates.
There were these non-lethal corporal punishments, and the death penalty is sort of the last vestige of a bodily punishment. The Supreme Court has read the Eighth Amendment to allow capital punishment. That issue is still a very live one before the Supreme Court. We’re now seeing challenges regarding lethal injection protocols. We saw one challenge to a protocol in Kentucky in 2008 and one to a protocol in Oklahoma in 2015.
These are things the founding fathers would never have envisioned. Lethal injection typically involves a three-drug cocktail: a barbiturate to put you to sleep, a paralyzing agent that stops your lungs from moving, and a heart-stopping agent. Give the offender all three and they're supposed to die quickly and painlessly. The problem is, if the sedative doesn't put you completely unconscious, then the other two drugs are likely to make you suffer quite a bit before you die.
The question is, is this cruel and unusual or not? To date, the Supreme Court has held that lethal injection is not cruel and unusual. Their main reason has been that the state is not trying to torture you to death. So maybe you're sometimes accidentally tortured to death—well, that's just too bad, but it’s not a cruel and unusual punishment.
The Supreme Court has approved various methods of execution. At the same time, however, the Eighth Amendment has been read to protect prisoners. Generally, the Eighth Amendment is a protective shield that prohibits prison guards from gratuitously beating up inmates. It requires prisons to provide some level of health care to prisoners because they cannot get it themselves; they're sort of wards of the state once they're put in prison. It also requires inmates to be fed and sheltered.
In many ways, the Eighth Amendment is a protective shield protecting inmates, but then in capital punishment, it takes on a kind of Dr. Jekyll and Mr. Hyde jurisprudence.
We’ve learned that the Eighth Amendment seeks to limit the power of the government in meting out punishment to people who have been accused or convicted of a crime. Although it's hard to tell exactly what constitutes excessive fines or bail, in general, it's accepted that those punishments should be proportional to the crimes in question.
Today, one of the biggest debates concerns whether and how the Eighth Amendment may limit the death penalty. To learn more about the Eighth Amendment, visit the National Constitution Center's interactive constitution and Khan Academy's resources on U.S. government and politics.