Wednesday, March 8, 2017

The Eight Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The Eight Amendment is most often referred to when we begin talking about capital punishment.  Is it appropriate for the state to execute a prisoner, and if so, what is a non-cruel (humane) way to do it?  But, it also directs the government not to impose excessive bail or fines for crimes, both civil and criminal.  So, let’s talk about these three things.
What about excessive bail, or even is bail required in all cases?  According to the Cornell University Legal Information Institute[i] this clause was taken from the British Bill of Rights Act.  It is ambiguous in the sense it does not address whether or not everyone deserves bail, just if they are allowed bail it should not be excessive.  The Supreme Court of the United States has maintained this ambiguity regarding the right to bail, and we see it in the new fairly routinely where a defendant is denied bail for a variety of reasons, including threat to the community, risk of flight, threat to the individual, or contempt of court.
While the issue of bail has a long history in British Law, dating back to the 1200’s, the issue of “excessive fines” has been far less discussed or litigated.  The SOCTUS has, for the most part, chosen to avoid setting precedent on this throughout its history, but it seems to be the focus of every legislative body in the nation every time the insurance industry lobbyists and the lawyer industry lobbyists get together with the politicians.  We routinely hear of the good and evil of “tort reform,” and at the end of the day it generally boils down to what kind of civil fines and lawyer fees are going to be allowed in the various states.
Finally, we come to “cruel and unusual punishment.”  In its discussions, the Constitutional Congress[ii] in formulating this amendment showed some considerable debate about what was meant and whether or not there should be limits on the kinds of punishment should be allowed.  It was also clear there was sufficient concern over the lack of discussion in the basic constitution that ratification without this amendment was in serious doubt.  The solution was to leave it rather open ended and hopefully let future legislatures and courts sort it out.
For the majority of our history the courts have deferred to the legislative bodies, and something of a “majority rules” kind of attitude on what should be considered cruel and unusual punishment, but over the past hundred years or so there has been a shift in the approach the Court has taken.  In Weems v United States (1910), the court concluded the framers of the of Constitution and the 8th Amendment had not intended to bar the procedures and techniques considered cruel in 1789, but intended to prevent cruelty in other forms of punishment.  In the eyes of the court this meant the amendment was “expansive and vital in character.”  In other words, the definition of cruel and unusual should evolve as society evolves. 
What we’ve seen in recent courts is the clear divide between traditionalists like Thomas and the late Justice Scalia, and the progressives like Ginsburg and Breyer on the issue of whether a punishment that has traditionally been considered acceptable remains so today.

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