The Eighth Amendment (Amendment VIII) to the United States Constitution protects against imposing excessive bail, excessive fines, or cruel and unusual punishments. This amendment was adopted on December 15, 1791, along with the rest of the United States Bill of Rights. The amendment serves as a limitation upon the federal and state governments to impose unduly harsh penalties on criminal defendants before and after a conviction. This limitation applies equally to the price for obtaining pretrial release and the punishment for crime after conviction. The phrases in this amendment originated in the English Bill of Rights of 1689.

The prohibition against cruel and unusual punishments has led courts to hold that the Constitution totally prohibits certain kinds of punishment, such as drawing and quartering. Under the Cruel and Unusual Punishment Clause, the Supreme Court has struck down the application of capital punishment in some instances, but capital punishment is still permitted in some cases where the defendant is convicted of murder.

The Supreme Court has held that the Excessive Fines Clause prohibits fines that are "grossly disproportional to the gravity of [the] offense." The Court struck down a fine as excessive for the first time in United States v. Bajakajian (1998). Under the Excessive Bail Clause, the Supreme Court has held that the federal government cannot set bail at "a figure higher than is reasonably calculated" to ensure the defendant's appearance at trial. The Supreme Court has ruled that the Excessive Fines Clause and the Cruel and Unusual Punishments Clause apply to the states, but has not done this regarding the Excessive Bail Clause.

Text

Background and general aspects Background The Eighth Amendment was adopted, as part of the Bill of Rights, in 1791. It is almost identical to a provision in the English Bill of Rights of 1689, in which Parliament declared, "as their ancestors in like cases have usually done... that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

The provision was largely inspired by the case in England of Titus Oates who, after the accession of King James II in 1685, was tried for multiple acts of perjury that had led to executions of many people Oates had wrongly accused. Oates was sentenced to imprisonment, including an annual ordeal of being taken out for two days' pillory plus one day of whipping while tied to a moving cart. The Oates case eventually became a topic of the U.S. Supreme Court's Eighth Amendment jurisprudence.See Harmelin v. Michigan, ; Ingraham v. Wright, ; Furman v. Georgia, ; and Weems v. United States, The punishment of Oates involved ordinary penalties collectively imposed in a barbaric, excessive and bizarre manner.Bartee, Alice. Litigating Morality, page 114 (Greenwood Publishing Group 1992). The reason why the judges in Oates' perjury case were not allowed to impose the death penalty (unlike in the cases of those whom Oates had falsely accused) may be because such a punishment would have deterred even honest witnesses from testifying in later cases.Chitty, Joseph. A Practical Treatise on the Criminal Law, page 293 (Edward Earle 1819). A judge in the Oates case said: "Crimes of this nature are left to be punished according to the Discretion of this Court, so far as that the Judgment extend not to Life or Member." See Harmelin v Michigan .

England's declaration against "cruel and unusual punishments" was approved by Parliament in February 1689, and was read to King William III and his wife Queen Mary II as the Declaration of Right on the following day.Claus, Laurence. "The Anti-Discrimination Eighth Amendment", Harvard Journal of Law and Public Policy, Vol. 28 (2004) Members of Parliament then explained in August 1689 that "the Commons had a particular regard... when that Declaration was first made" to punishments like the one that had been inflicted by the King's Bench against Titus Oates. Parliament then enacted the English Bill of Rights into law in December 1689. Members of parliament characterized the punishment in the Oates case as not just "barbarous" and "inhuman" but also "extravagant" and "exorbitant".

There is some scholarly dispute about whom the clause intended to limit.Donelson, Raff. Who are the Punishers? UMKC Law Review 86(2): 259-294 (2017) In England, the "cruel and unusual punishments" clause may have been a limitation on the discretion of judges, requiring them to adhere to precedent. According to the great treatise of the 1760s by William Blackstone entitled Commentaries on the Laws of England:

Virginia adopted this provision of the English Bill of Rights in the Virginia Declaration of Rights of 1776, and the Virginia convention that ratified the U.S. Constitution recommended in 1788 that this language also be included in the Constitution.Schwartz, Bernard. The Great Rights of Mankind: A History of the American Bill of Rights, page 170 (Rowman & Littlefield 1992). Virginians such as George Mason and Patrick Henry wanted to ensure this restriction would also be applied as a limitation on Congress. Mason warned that, otherwise, Congress may "inflict unusual and severe punishments".Patterson, John. The Bill of Rights: Politics, Religion, and the Quest for Justice, page 84 (2004). Henry emphasized that Congress should not be allowed to depart from precedent:

Ultimately, Henry and Mason prevailed, and the Eighth Amendment was adopted. James Madison changed "ought" to "shall", when he proposed the amendment to Congress in 1789.

General aspects

In Coker v. Georgia (1977)Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L.Ed.2d 982 (1977) it was decided that "Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent." In Timbs v. Indiana (2019)Timbs v. Indiana, 139 S. Ct. 682, 203 L. Ed. 2d 11, (2019) the Supreme Court stated that the Excessive Bail Clause, the Excessive Fines Clause and the Cruel and Unusual Punishment Clause together form a shield against abuses stemming from the government's punitive or criminal-law-enforcement authority.

Excessive bail

In England, sheriffs originally determined whether to grant bail to criminal suspects. Since they tended to abuse their power, Parliament passed a statute in 1275 whereby bailable and non-bailable offenses were defined. The King's judges often subverted the provisions of the law. It was held that an individual may be held without bail upon the Sovereign's command. Eventually, the Petition of Right of 1628 argued that the King did not have such authority. Later, technicalities in the law were exploited to keep the accused imprisoned without bail even where the offenses were bailable; such loopholes were for the most part closed by the Habeas Corpus Act 1679. Thereafter, judges were compelled to set bail, but they often required impracticable amounts. Finally, the English Bill of Rights (1689) held that "excessive bail ought not to be required."

However, the English Bill of Rights did not determine the distinction between bailable and non-bailable offenses. Thus, the Eighth Amendment has been interpreted to mean that bail may be denied if the charges are sufficiently serious.

The Supreme Court has also permitted "preventive" detention without bail. In United States v. Salerno, , the Supreme Court held that the only limitation imposed by the Excessive Bail Clause is that "the government's proposed conditions of release or detention not be 'excessive' in light of the perceived evil". In Stack v. Boyle, ,Stack v. Boyle, 342 U.S. 1, 72 S. Ct. 1, 96 L. Ed. 3 (1951) the Supreme Court declared that a bail amount is "excessive" under the Eighth Amendment if it were "a figure higher than is reasonably calculated" to ensure the defendant's appearance at trial.

The incorporation status of the Excessive Bail Clause is unclear. In Schilb v. Kuebel, 404 U.S. 357 (1971), the Court stated in dicta: "Bail, of course, is basic to our system of law, and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment." In McDonald v. City of Chicago (2010), the right against excessive bail was included in a footnote listing incorporated rights.McDonald, at fn. 12

Excessive fines Browning-Ferris v. Kelco

In Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., , the Supreme Court ruled that the Excessive Fines Clause does not apply "when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded". While punitive damages in civil cases are not covered by the Excessive Fines Clause, such damages were held to be covered by the Due Process Clause of the Fourteenth Amendment, notably in State Farm Mutual Automobile Insurance Co. v. Campbell, .

Austin v. United States

In Austin v. United States ,Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993) the Supreme Court ruled that the Excessive Fines Clause does apply to civil asset forfeiture actions taken by the federal government, in the specific case, the government's seizure of the petitioner's mobile home and auto body shop on the basis of his drug dealing on the premises.

United States v. Bajakajian

In United States v. Bajakajian, , the Supreme Court ruled that it was unconstitutional to confiscate $357,144 from Hosep Bajakajian, who had failed to report possession of over $10,000 while leaving the United States. In what was the first case in which the Supreme Court ruled that a fine violated the Excessive Fines Clause, the Court held that it was "grossly disproportional" to take all the money Bajakajian had attempted to take out of the United States in violation of a federal law that required that he report an amount in excess of $10,000. In describing what constituted "gross disproportionality", the Court could not find any guidance from the history of the Excessive Fines Clause, and so looked to Cruel and Unusual Punishment Clause case law:

Thus the Court declared that, within the context of judicial deference to the legislature's power to set punishments, a fine would not offend the Eighth Amendment unless it were "grossly disproportional to the gravity of a defendant's offense".

Timbs v. Indiana

In Timbs v. Indiana the Supreme Court ruled that the Excessive Fines Clause applies to state and local governments under the Due Process Clause of the Fourteenth Amendment. The case involves the use of civil asset forfeiture to seize a $42,000 vehicle under state law in addition to the imposition of a $1,200 fine for drug trafficking charges, house arrest, and probation.

Cruel and unusual punishments General aspects