Avoiding the Stocks: How the Eighth Amendment Guarantees Humane Treatment, and Other Protections for the Criminally Accused

George Lehman, “Eastern Penitentiary of Pennsylvania. Near Philadelphia.” Library Company of Philadelphia.

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

The Eighth Amendment helps make our criminal justice system more just for those accused or convicted of criminal behavior. It is comprised of three rights, each of which plays a part in protecting Americans from a harsh and overly ambitious government.

The history behind the Amendment can be traced to the English Bill of Rights created in 1689. In fact, the language used in that document, “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted,” is almost identical to the words found in our Eighth Amendment.

In 1776, George Mason included a prohibition against cruel and unusual punishments in the Virginia Declaration of Rights. When our leaders were creating our Bill of Rights in 1791, they relied heavily on both the English and Virginia statutes.

Men like Abraham Holmes, a delegate to the Massachusetts Ratifying Convention, worried that in the existing Constitution, Congress was “nowhere restrained from inventing the most cruel and unheard-of punishments…and there was no constitutional check on them.”

Patrick Henry of Virginia went further worrying that without explicitly forbidding cruel and unusual punishments, Congress might use torture to “exact a confession of the crime.” Due to sentiments like these, James Madison, the man most responsible for devising the Bill of Rights, created an amendment with three key protections.

The first section protects those accused but not yet convicted of a crime from having bail set so high that it practically guarantees imprisonment until trial. In the years since this Amendment was ratified, the Supreme Court has placed limits on this right.

Specifically, the Court has balanced the guarantees stated in the Amendment with the competing claim of what is best for society. For instance, if the accused is dangerous or a flight risk, bail may be set at a higher amount or completely denied.

The second provision specifies that the government may not impose a fine that is unreasonable, but rather must be appropriate to the offense. Additionally, in Waters-Pierce Oil Co. v. Texas (1909), the Supreme Court defined excessive fines as those that are “so grossly excessive as to amount to a deprivation of property without due process of law.”

The most discussed and controversial section is the final one dealing with “cruel and unusual punishments.” While the Supreme Court has never clearly stated what exactly constitutes punishments of this nature, it has given us guidelines under which we can dispense punishment for those convicted of crimes.

For example, in Furman v. Georgia (1972), the Supreme Court listed four principles by which a particular punishment might be cruel and unusual; if it were “degrading to human dignity”, “inflicted in wholly arbitrary fashion”, “clearly and totally rejected throughout society”, and “patently unnecessary”.

In general, the punishment must be proportional to the crime and in keeping with the values of our society. Therefore, what constitutes “cruel and unusual punishment” is always undergoing modifications.

As the Court stated in Trop v. Dulles (1958), the meaning is flexible and dynamic in accordance with “the evolving standards of decency that mark the progress of a maturing society.” In other words, what was acceptable in 1791 is not what we would accept today.

Perhaps the most debated sentence is capital punishment, which the Court has found to be constitutional. Its reasoning is based on the Fifth Amendment’s “due process clause” which permits a convicted defendant’s “life, liberty and property” to be taken as long as their rights are not violated.

 That said, the High Court has imposed some limitations. These include how the death penalty is carried out (it must be painless), the age of the criminal (they must be at least 16 years old), and their mental capacity (they must be sane).

WHY IT MATTERS

So why does it matter to us today that the Eighth Amendment prohibits the government from imposing excessive and unduly harsh penalties on criminal defendant’s both before and after conviction? Our Forefathers knew that once a person fell within the bounds of the judicial system, they would be relatively powerless. Without adequate protections, citizens in the hands of the government would be at the mercy of their prosecutors.

To prevent unduly harsh and arbitrary treatment, the Founders created the three protections found in the Eighth Amendment. Because of these, criminal defendants, in most cases, may remain free on bail rather than suffer in a jail before being convicted. Additionally, the government may not take an excessive amount of money from someone who has been found guilty, but rather must make the value fit the crime.

Finally, the court system must treat in a dignified manner even those convicted of the most heinous of crimes. Moreover, when punishment is administered, it must be humanely done and in accordance with societal norms then in vogue. While most of us will never be criminally accused, it should be comforting to know the system created by our Founders provides humane treatment to those in a compromised position.

SUGGESTED READING

A great book on the Bill of Rights is “The Know Your Bill of Rights Book” by Sean Patrick. It came out in 2013 and is an easy-to-understand explanation of our rights as Americans and I strongly recommend it. As Thomas Jefferson said, “Educate and inform the whole mass of the people…They are the only sure reliance for the preservation of our liberty”.

PLACES TO VISIT

As crazy as it may sound, there are several prison museums in America. One of the best is the Eastern State Penitentiary in Philadelphia, PA. The prison which closed in 1971 is a National Historic Landmark and open for tours seven days a week. Overnight stays are not recommended!

Until next time, may your motto be “Ducit Amor Patriae,” Love of country leads me.