The Eighth Amendment: Text, Origins, and Meaning

Defendants who are not released on bail have greater difficulty preparing their defenses. They're effectively punished with imprisonment until their time of trial. Decisions regarding bail should not be made lightly. Bail is set extremely high or sometimes denied entirely when a defendant is charged with an extremely serious offense and/or if he poses a flight risk 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 the matter is not insignificant in a capitalist system. By their very nature, fines are anti-egalitarian. A $25,000 fine levied against an extremely wealthy defendant might only impact his 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. Most convicts are poor so the issue of excessive fines is central to our criminal justice system.

Cruel and Unusual

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

• Don't ask the founding fathers: The Crimes Act of 1790 mandates the death penalty for treason and it 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: The Eighth Amendment certainly prohibits the torture of U.S. citizens in a contemporary context although 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 don't constitute part of the official sentence. In other words, the Eighth Amendment refers to de facto punishments whether they are officially handed down as punishments or not.
• The death penalty: The U.S. Supreme Court found that the death penalty, which was applied capriciously and on a racially discriminatory basis, violated the Eighth Amendment in Furman v. Georgia in 1972. "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. 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 death by a firing squad, have not been regarded as unconstitutional but are no longer in common use.
• The lethal injection controversy: 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 first is intended to prevent the excruciating effects of the latter two.