Eighth Amendment to the United States Constitution

1791 amendment regulating forms of punishment

Ratified on December 15, 1791, the Eighth Amendment (Amendment VIII) to the United States Constitution is a part of the United States Bill of Rights.[1] This amendment has three parts that each grant specific rights. The excessive bail clause limits excessive bail for any person arrested for a crime but has not yet been placed on trial.[2] The excessive fines clause is intended to limit fines imposed by state and federal governments on persons who have been convicted of a crime.[2] The most controversial and most important part is the cruel and unusual punishment clause.[2] The Eighth Amendment applies to criminal punishment and not to most civil procedures.[3]

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."[4]



The wording of the Eighth Amendment is almost the same as three of the provisions in the English Bill of Rights of 1689. These provisions were based on the case of Titus Oates, whose lies under oath caused the execution of many innocent people.[5] Because the English authorities did not want to make honest people fear to give evidence in court, he was not put to death.[5] While his punishment included those considered ordinary at the time, the combination of these punishments were applied in an excessive and brutal way.[6] Oates was convicted of sedition, thrown into prison to remain there. However, after James II of England became king in 1685, he was tried again,[a] this time for perjury.[6] In addition to being imprisoned for life, he was to be "whipped through the streets of London five days a year for the remainder of his life."[8] The first use of the provision of the English Bill of Rights was the Virginia Declaration of Rights of 1776.[6]

Excessive bail clause


Bail is the amount of money, property or bond that a defendant has to give to the court to guarantee his or her appearance at trial.[2] The bail put up by the defendant may be recovered at the end of the trial.[2] But if a defendant fails to appear at the time the trial is scheduled, the bail is forfeited and the defendant may face additional penalties.[2] A judge, when setting the amount of bail, has to consider several factors. These include the nature of the offense, how much evidence there is against the accused and what ties the defendant has to the community.[2] The judge must also take into account the defendant's ability to pay the amount of the bail and how likely it is the defendant will simply flee and not stand trial.[2] All defendants are presumed innocent.[9] Setting bail for an unreasonable amount would restrict the freedom and ability of the defendant to make a living as well as make it difficult to support his or her family.

Excessive fines clause


This clause limits the government's power to set fines, which are payments for a punishment or offense.[10] The amount of the fine must be proportional to the seriousness of the offense.[10] A fine violates this clause if it is grossly disproportional to the nature of the defendant's offense.[10]

In 1993, in Austin v. United States, the United States Supreme Court ruled that this clause applied also to civil procedures.[11] In doing this the Court reversed not only its own previous rulings but also those by several circuit courts of appeal.[11]

Cruel and unusual punishments clause


The phrase "cruel and unusual punishments" was first used in 1789 in the English Bill of Rights. In 1776, George Mason added it to the Virginia Declaration of Rights.[12] In 1791, this same prohibition became the central part of the Eighth Amendment.[1] Patrick Henry was among those who argued that prohibiting cruel and unusual punishment should be part of the Bill of Rights. Otherwise the new federal government could use torture to get confessions.[1] Torture was still being used at the time by Spain, France and Germany. The United States should not follow their example.[1] Because of these arguments this was added to the Eighth Amendment. Very few would disagree that the use of rack, thumbscrews or the gibbet are cruel and unusual punishments and clearly violate the Eighth Amendment. But past that point it becomes controversial as to what is and what is not cruel and unusual punishment.[1]

Cruel and unusual punishment was not clearly defined when the Eighth Amendment was passed.[13] But it was discussed. Representative Livermore pointed out on the floor of the House of Representatives that the wording was vague. He asked: "It is sometimes necessary to hang a man, villains often deserve a whipping, and perhaps having their ears cut off, but are we in the future to be prevented from inflicting those punishments because they are 'cruel'?"[13] But despite his objections the vague language was left in the amendment.[13]

In 1910, in Weems v. United States, the Supreme Court admitted that “what constitutes a cruel and unusual punishment has not been exactly decided.”[14] The Supreme Court began using the "evolving standards of decency" test. In Trop v Dulles (1958) the Court agreed with the view that what are prohibited "cruel and unusual punishments" should change over time based on punishments that offend society's "evolving sense of decency."[13] Very recently the courts have been reluctant to keep the term "unusual" in their judicial interpretations.[13]

Originalists[b] find that evaluating whether a punishment is cruel and unusual still come under the evolving standards test and public opinion. In Coker v. Georgia (1977) the Supreme Court held that the death penalty is unconstitutional for those convicted of rape.[14] This was based largely on the fact only one of the 50 states used this sentence.[14] Even then, juries in that state did not use it very often.[14]

Waterboarding has been seen as torture since the Spanish Inquisition. US Soldiers who were caught waterboarding in the Philippines in 1901, or during the Vietnam War, in 1968, were put on trial.[16] When done by other governments the US has not failed to call it torture.[16] The Bush administration maintained it was not bound by the constitutional test outside of the United States.[16] Justice Antonin Scalia had said in an interview with the BBC that he did not see anything in the constitution that prohibited torture of detainees.[17] Not when it was for the purpose of gaining information. He said it would be unconstitutional if it were inflicted as a punishment, however.[17] At his inauguration in 2009, US President Barack Obama pledged to end “enhanced interrogation techniques” by the CIA and to close Guantánamo through executive orders.[18]

  1. In England, protection against double jeopardy was adopted as early as 1250.[7] However, it was very narrow in its application. It gave protection to only to defendants accused of a "capital felony" (felony punishable by death) and could only be applied after a conviction or acquittal.[7] As with the later Fifth Amendment double jeopardy only applied to being tried again for the same offense.
  2. Originalism in constitutional law means interpreting the constitution as it would have been at the time it was written. Originalists include conservatives such as Justice Clarence Thomas, the late Justice Antonin Scalia.[15] Some liberals, such as Justice Hugo Black are also originalists. This view holds that punishments allowed in 1790 could be used today.[14]


  1. 1.0 1.1 1.2 1.3 1.4 Bryan A. Stevenson; John F. Stinneford. "The Eighth Amendment". National Constitution Center. Archived from the original on 22 February 2016. Retrieved 24 February 2016.{{cite web}}: CS1 maint: multiple names: authors list (link)
  2. 2.0 2.1 2.2 2.3 2.4 2.5 2.6 2.7 "Eighth Amendment". The Free Dictionary/Farlex. {{cite web}}: Missing or empty |url= (help)
  3. "Eighth Amendment" (PDF). GPO, U. S. Government Printing Office. Jun 25, 2004. Retrieved 24 February 2016. p. 1565
  4. "Eighth Amendment" (PDF). GPO, U. S. Government Printing Office. Jun 25, 2004. Retrieved 24 February 2016. p. 1603
  5. 5.0 5.1 "8th Amendment to the Constitution". Totally History. Retrieved 24 February 2016.
  6. 6.0 6.1 6.2 "An Overview of the 8th Amendment". Laws. Retrieved 24 February 2016.
  7. 7.0 7.1 "The Concept of Double Jeopardy: Background". FindLaw. Retrieved 24 February 2016.
  8. Steven C. A. Pincus, 1688: The First Modern Revolution (New Haven: Yale University Press, 2009), p. 153
  9. "Excessive Bail". FindLaw. Retrieved 24 February 2016.
  10. 10.0 10.1 10.2 "Excessive Fines Clause Law & Legal Definition". US Legal. Retrieved 24 February 2016.
  11. 11.0 11.1 David Lieber, 'Eighth Amendment--The Excessive Fines Clause', Journal of Criminal Law and Criminology, Vo. 84, No. 4 (Winter 1994), p. 805
  12. "George Mason: The Reluctant Founder". Center for Civic Education. Retrieved 24 February 2016.
  13. 13.0 13.1 13.2 13.3 13.4 "Cruel and Unusual Punishments". Exploring Constitutional Concepts. Retrieved 24 February 2016.
  14. 14.0 14.1 14.2 14.3 14.4 "The Meaning of "Cruel and Unusual Punishment"". NOLO. Retrieved 24 February 2016.
  15. Akhil Reed Amar. "Rethinking Originalism". The Slate Group. Archived from the original on 4 March 2016. Retrieved 24 February 2016.
  16. 16.0 16.1 16.2 "Torture and the Constitution". The Washington Post. 11 December 2005. Retrieved 24 February 2016.
  17. 17.0 17.1 Nina Totenberg (12 February 2008). "Scalia Enters Debate on Constitution and Torture". NPR. Retrieved 24 February 2016.
  18. Sally Eberhardt; Jeanne Theoharis (22 January 2014). "Five Years Ago, Obama Pledged to End Torture. He Still Hasn't". The Nation. Archived from the original on 11 February 2016. Retrieved 24 February 2016.{{cite web}}: CS1 maint: multiple names: authors list (link)