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The Eighth Amendment


Empty prison cell
Darrin Klimek/Digital Vision/Getty Images

Text of Amendment:

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

Why Bail is Crucial:

Defendants who are not released on bail have greater difficulty preparing their defense. They are also, in effect, punished with imprisonment for the duration that they are forced to remain in prison. For this reason, decisions regarding bail should not be made lightly. Bail is extremely high, and sometimes denied, if the client is being charged with an extremely serious offense and poses a flight risk and/or great potential danger to the community, but in the majority of criminal trials bail should be available and affordable.

It's All About the Benjamins:

Civil libertarians tend to overlook fines, but in a capitalist system, the matter is not insignificant. Fines are, by their very nature, anti-egalitarian. A $25,000 fine levied against an extremely wealthy defendant might only impact discretionary income; a $25,000 fine levied against a less wealthy defendant can potentially have a long-term effect on basic medical care, educational opportunities, transportation, and food security. Since most convicts are poor, the issue of excessive fines is central to our criminal justice system.

Cruel and Unusual:

But the most frequently cited part of the Eighth Amendment deals with its prohibition against cruel and unusual punishment. In practical terms, what does this mean?

Don't Ask the Founding Fathers:

The Crimes Act of 1790 not only mandates the death penalty for treason, but also mandates mutilation of the corpse. By contemporary standards, corpse mutilation would certainly be regarded as cruel and unusual. Floggings were also common at the time of the Bill of Rights, but today floggings would be regarded as cruel and unusual. The Eighth Amendment is more clearly affected by societal change than any other amendment in the Constitution, because the very nature of the phrase "cruel and unusual" appeals to evolving societal standards.

Torture and Prison Conditions:

In a contemporary context, the Eighth Amendment certainly prohibits the torture of U.S. citizens--even though torture is generally used as an interrogation method, not as an official form of punishment. Inhumane prison conditions also violate the Eighth Amendment, even though they do not constitute part of the official sentence. The Eighth Amendment, in other words, refers to de facto punishments--whether they are officially handed down as punishments or not.

The Death Penalty:

In Furman v. Georgia (1972), the U.S. Supreme Court found that the death penalty, which was applied capriciously and on a racially discriminatory basis, violated the Eighth Amendment. "These death penalties are cruel and unusual," Justice Potter Stewart wrote in the majority opinion, "in the same way that being struck by lightning is cruel and unusual." The death penalty was reinstated in 1976 after serious revisions were made.

Specific Methods of Execution Prohibited:

The death penalty is legal, but not all methods of enforcing it are legal. Some, such as crucifixion and death by stoning, are obviously unconstitutional. Others, such as the gas chamber, have been declared unconstitutional by courts. And still others, such as hanging and the firing squad, have not been regarded as unconstitutional but are no longer in common use.

The Lethal Injection Controversy:

Most recently, the State of Florida declared a moratorium on lethal injection, and a de facto moratorium on the death penalty as a whole, after reports that Angel Diaz was essentially tortured to death during a botched execution. Lethal injection in humans is not simply a matter of putting the defendant to sleep; it involves three drugs, the strong sedative effect of the former intended to prevent the excruciating effects of the latter two.
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