The Eighth Amendment | National Constitution Center | 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. 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. I think 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 there was a risk of abuse from the government in the United States.

Originally, in the Constitution, these rights were not protected against these abuses. The Bill of Rights was ratified in 1791, which ensured that there would be protections against these cruel and unusual punishments, excessive bail, and excessive fines. If you look at the Eighth Amendment, there are three clauses: 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 a result of either being accused of a crime or of being convicted of crimes. 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. After you've been convicted, the court might impose a fine on you or some other kind of punishment. So, the Eighth Amendment is designed to prevent the government from doing things that are excessive.

You know, when the government punishes a person, that's the most coercive thing the government does, short of war. Other than, you know, 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 make sure that we had a constitutional protection when it comes to criminal punishment.

In a lot of 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. When that went into place, there was actually a controversy in England around a person by the name of Titus Oates. Titus Oates was somebody who had a false accusation and committed perjury, which resulted in the execution of 15 Catholics. The plot that he alleged was one to assassinate the King of England.

The question is what to do with Oates. As a sort of moral matter, he's about as bad as it gets. In fact, in 2005, English historians voted him the worst Briton of the 17th century and the third worst Briton of the last thousand years. So, a very bad guy. You could think of him as a sort of a serial killer. But the problem is that the actual crime he committed was the crime of perjury.

Even though 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 that he could not be executed for his crime. So, when it came time for his sentencing, the judge, Chief Justice Jeffries, who was 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."

It turns out that what they had prepared for him was, number one, a huge fine. They fined him like 2,000 marks. They sentenced that he'd be dragged across the city of London while being flogged. He was dragged from Aldgate to Newgate while being flogged. Then, two days later, just as the scabs were starting to form on his wounds, he was dragged back across the city of London 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 very severe.

After the English Bill of Rights was promulgated, Titus Oates's punishment was challenged. Some members of the House of Lords actually 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 Oates because they hated him so much. They said, "You know, so ill a man shouldn't get the benefit of any relief."

However, they all agreed that the punishment was cruel and unusual. What's interesting is that in the debate, they say things like this punishment is contrary to law and ancient practice, that it is without precedent, and it'll be a bad precedent for the future. So, in other words, it's cruel. The way we know it's cruel is because it's so much harsher than has previously been inflicted for the crime of perjury.

So, 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 and the rack and all that kind of thing. In fact, the punishments inflicted on Oates, although they were 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.

Wow! 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?

So 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 another problem with statutory law, or with decisions of a judge or a king or a president, for that matter, that's also really 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 they want to inflict the worst punishment they can on that person, or perhaps there is a panic about a certain group in society. For example, in American society recently, there have been panics about drug crime or panics about sex offenses. Every time that happens, the government tries to respond with new forms of punishment that are much harsher than what came before.

So, 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, you have to compare it against the common law. The common law was called the law of custom and long usage. If something comported with the common law, it was usual. If it was contrary to the common law, it was unusual. That's where we get the phrase "cruel and unusual punishments."

It's basically punishments that are cruel in light of or in comparison to long-standing prior practice. So, 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, many decades later, they had their own issues that they were struggling with. The history shows that the American founders probably meant something different than the English meant because it was done over 100 years later. But nobody knows exactly what was meant when they adopted that wording.

To give an 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 of them was too indefinite. There was another legislator, Mr. Livermore from New Hampshire, who said that the clause seems to express a great deal of humanity, which account I have no objection to, but as it seems to have no meaning in it, I do not think it necessary.

What is meant by the terms excessive bail? He asked who were to be the judges. He also asked what is understood by excessive fines. It lies for the court to determine. So that's really where we are today, in a lot of ways. The court is still deciding— 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 a lot around the death penalty, and so the question was, is it still okay to execute people for various crimes short of murder? Since the 1970s, the court has continued to do that in a number of areas. It has said you can't execute the mentally disabled anymore; you can't execute minors; you can't execute anyone for a non-homicide offense.

Although it's limited the death penalty in the name of current standards of decency, it's really not clear how the court has set about to determine whether a punishment meets current standards of decency. When the court is kind of on its own saying that a punishment violates current standards of decency, despite the fact that most democratically elected legislatures actually approve the practice, it looks like the court's acting as sort of a political body.

This sort of led the court to ignore what I think is the real danger of cruelty, which is that when there's a public panic and the legislature responds by ratcheting up punishment to new and unprecedented levels of punishment, and that's actually happened quite a lot in the last 40 years.

Every time there’s a panic, you predictably see the legislatures coming up with new punishments that are much harsher than what came before. For example, with regard to sex offenders, there are now a bunch of states that actually impose chemical castration as a form of punishment for sex offenders. Now, castration as a form of punishment fell out of usage in the 13th century. We're literally getting medieval on sex offenders.

But the court can't do anything really to stop it or at least hasn't, because these are very popular forms of punishment. Everyone hates sex offenders. The UN has actually decided that anything more than 15 days' use of solitary confinement should not be permitted. Justice Anthony Kennedy actually raised the issue of solitary confinement in a recent opinion he authored for the Supreme Court.

He raised the issue on his own at oral argument at one point, talking about how long people actually spend in solitary confinement in American prisons, including on death row. You have cases where people are spending not just years but sometimes decades on death row in these kinds of conditions. Justice Breyer just wrote a dissent in a case where the person had been on death row for more than 40 years, so literally four decades in these kinds of very harsh conditions of confinement.

Other countries have decided that that is not something they want to permit, and they've sought out a rule that anybody that's on death row for a certain number of years, for example, would have their sentence commuted to a life sentence because of the psychological aspect of sort of waiting for one's death.

In the Bill of Rights, this is the last of four amendments that are 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 that the accused had rights?

Yeah, they were. In particular, Americans were very devoted to the idea of the common law as a source of rights. In fact, that's why we had the American Revolution in the first place—was that England was denying to Americans common law rights, like the right not to be taxed without representation in Parliament.

But also more specifically to the criminal law, they were denying them the right to a jury trial in criminal cases. Americans wanted to make sure 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.

Again, the reason gets back to sort of what I said at the beginning, which is that when the government punishes someone, that's about the worst thing it can do. The early Americans who framed the Constitution were very powerfully concerned with liberty. They wanted to make sure the government would preserve their liberty, protect their liberty, and not become tyrannical.

One of the main ways that they wanted to make sure this happened was by limiting the power of the government to punish whoever it wanted to for any reason it wanted to. The majority of the 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 actually goes back to look at Beccaria's work in the 1760s. He talked about this idea of a scale of crimes and a scale of punishments, and he said there should be proportionality between the two.

So that proportionality principle is one that we're still wrestling with today. Now, the point of bail is not to punish someone, but rather just to make sure that they will appear at trial. The amount of money you have to impose for bail doesn't depend so much on what crime you committed, but what your financial resources are. It depends partially on the crime, too, but largely on your financial resources.

So, the amount of money necessary to make sure that a poor man appears at trial is probably going to be much lower than the amount of money necessary to make sure that a rich man appears at trial. It’s a standard that depends partly on the nature of the crime but also partly 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 do whipping as a punishment anymore. How has what counts as cruel and unusual punishment changed over time?

The law really changes gradually over time, as you know. When you look back at history, they actually had a large collection of pretty gruesome punishments back in the 18th century. We had non-lethal corporal punishments. They used things like branding people. They, of course, were whipping slaves back then—slavery was still around. This was well before the Civil War ended the institution of slavery.

We also had things like ear cropping—people would get their ears cut off. In the Crimes Act of 1790, which was passed the year before the ratification of the Eighth Amendment, Congress actually authorized public whipping, lashing of people, and also authorized the pillory—the same punishment that had been used against Titus Oates. So, there were these non-lethal corporal punishments, and really the death penalty is sort of the last vestige of a bodily punishment that the Eighth Amendment...the Supreme Court has read the Eighth Amendment to allow the use of capital punishment.

That issue is still a very live one before the Supreme Court. We're now seeing challenges about lethal injection protocols. We saw a challenge to a protocol in Kentucky in 2008, and we saw one to a protocol in Oklahoma in 2015. These, of course, are things that the founding fathers would never have envisioned.

Lethal injection typically involves a three-drug cocktail. There’s a barbiturate, which is supposed to put you to sleep, a paralyzing agent which paralyzes your body and also stops your lungs from moving, and a heart-stopping agent. Give the offender all three, and they're supposed to die quickly and painlessly. But the problem is if the sedative doesn't put you completely, deeply unconscious, then the other two drugs are likely to make you suffer quite a bit before you die.

So, the question is: is this cruel and unusual, or is it not? To date, the Supreme Court has twice held that lethal injection is not cruel and unusual. Their main reason has been that the state’s not trying to torture you to death, and so if maybe you’re sometimes accidentally tortured to death, well, that’s just too bad. 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. So, in general, the Eighth Amendment is sort of 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 requires inmates be fed and sheltered. So, in a lot of ways, the Eighth Amendment is a protective shield protecting inmates. But then in the use of capital punishment, it becomes what I like to call kind of a Dr. Jekyll and Mr. Hyde kind of jurisprudence that the Eighth Amendment has right now.

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.