Brushfire of Freedom
The Armory
Note: Originally published on June 23rd, 2009 at Brushfire Sparks
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The eighth amendment is again focused on the judiciary and the criminal process. The Founders had seen the courts used as a rather insidious and destructive tool by the British Monarchy and did not want that type of power given to the new government. Thus several of the amendments in the Bill of Rights are focused on how individuals accused of crimes are to be treated before, during, and after their trial.
The eighth has a provision for before the trail in that it requires a reasonable bail be set by the courts to prevent extended imprisonment prior to trial. Since the accused is innocent until proven guilty, keeping them confined prior to any evidence being heard seemed to be a bit out of alignment with the overall purpose established for the judiciary. The bail or “bond” is set by the court and can be paid by the accused to ensure their appearance at the actual trial. However, there are cases where the courts are permitted to deny bail if the charges are sufficiently serious. The Supreme Court has permitted "preventive" detention without bail. Thus it is possible to be incarcerated for an extended period of time in spite of the eighth amendment. The purpose of the amendment is to prevent the abuse of power of the judiciary and ensure that individuals have the freedom necessary to prepare their defense.
Excessive fines and cruel and unusual punishment refer to the treatment of those found guilty through the process of law. Like the other amendments, this portion of the eighth is about preventing the judiciary from abusing its power. This portion of the amendment is the basis for many of the sentencing guidelines in use in courts today, and ensures you can not be fined $500,000 for a speeding ticket. It is the portion of the amendment that has been under a great deal of scrutiny in the courts, who have gone so far as to uphold specific punishments for specific crimes. For example, in 1878 it was decided that death by firing squad was not cruel and unusual punishment. It also held in 1991 that a life sentence without the possibility of parole was an acceptable punishment for the possession of 672 grams of cocaine.
The discussion on this amendment has been largely around the definition of “cruel and unusual” punishment. According to the US Supreme Court, the eighth forbids some punishments entirely, and forbids others that are considered excessive when compared to the crime, or compared to the competence of the perpetrator. For example, the Supreme Court has rules that drawing and quartering, public dissecting, burning alive, or disemboweling would constitute cruel and unusual punishment regardless of the crime. The court has also declared that executing the mentally handicapped or executing people who were under age 18 to be violations of the Eighth Amendment, regardless of the crime. These punishments are considered cruel and unusual because they are degrading to human dignity. There are four specific principles that have been set as a baseline for determining cruel and unusual punishment:
- A punishment must not by its severity be degrading to human dignity, especially torture.
- A severe punishment that is obviously inflicted in a wholly arbitrary fashion.
- A severe punishment that is clearly and totally rejected throughout society.
- A severe punishment that is patently unnecessary.
There are cases where certain punishments are allowed for specific crimes, but not others. The death penalty was ruled cruel and unusual in cases of rape, because the victim did not lose their life in the commission of the crime. This also implied that the death penalty was excessive for any crime other than murder and has thus set the framework for most murder cases today. The courts later established a special process for cases where the death penalty could be the sentence to ensure that such a severe punishment was only administered with relative infrequency. The position remains that the death penalty may be appropriate in very specific cases, though the method of execution should not be degrading.
What the eighth does for Americans is further protects us from an over-reaching judiciary. It ensures the courts do not become a tool of the power hungry. It protects those who stand accused and helps guarantee their innocence until guilt is proven and it protects those found guilty from excessive or demeaning punishment. The eighth is the capstone of the court-focused amendments in the Bill of Rights, and is key in ensuring the freedom of all Americans, including those who are accused of crimes.
Contact Ramarious Brushfire Home
Copyright 2010. The published content is the sole property of the author. Any copy, use, or redistribution of any portion of the material without the written consent of the owner is a violation of international copyright laws.