Eighth Amendment

• Author: Jeffrey Lehman, Shirelle Phelps

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The Eighth Amendment to the U.S. Constitution reads:

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

The Eighth Amendment to the U.S. Constitution, ratified in 1791, has three provisions. The CRUEL AND UNUSUAL PUNISHMENTS CLAUSE restricts the severity of punishments that state and federal governments may impose upon persons who have been convicted of a criminal offense. The Excessive Fines Clause limits the amount that state and federal governments may fine a person for a particular crime. The Excessive Bail Clause restricts judicial discretion in setting bail for the release of persons accused of a criminal activity during the period following their arrest but preceding their trial.

Courts are given wide latitude under the Excessive Fines Clause of the Eighth Amendment. Fines imposed by a trial court judge or magistrate will not be overturned on appeal unless the judge or magistrate abused his or her discretion in assessing them (United States v. Hyppolite, 65 F.3d 1151 [4th Cir. 1995]). Under the "abuse-of-discretion" standard, appellate courts may overturn a fine that is ARBITRARY, capricious, or "so grossly excessive as to amount to a deprivation of property without due process of law" (Water-Pierce Oil Co. v. Texas, 212 U.S. 86, 111, 29 S. Ct. 220, 227, 53 L. Ed. 417 [1909]). Fines are rarely overturned on appeal for any of these reasons.

Trial court judges are given less latitude under the Excessive Bail Clause. Bail is the amount of money, property, or bond that a defendant must pledge to the court as security for his or her appearance at trial. If the defendant meets bail or is able to pay the amount set by the court, the defendant is entitled to recover the pledged amount at the conclusion of the criminal proceedings. However, if the defendant fails to appear as scheduled during the prosecution, then he or she forfeits the amount pledged and still faces further criminal penalties if convicted of the offense or offenses charged.

When fixing the amount of bail for a particular defendant, the court takes into consideration several factors: (1) the seriousness of the offense; (2) the WEIGHT OF EVIDENCE against the accused; (3) the nature and extent of any ties, such as family or employment, that the accused has to the community where he or she will be prosecuted; (4) the accused's ability to pay a given amount; and (5) the likelihood that the accused will flee the jurisdiction if released.

In applying these factors, courts usually attempt to set bail for a reasonable amount. Setting bail for an unreasonable amount would unnecessarily restrict the freedom of a person who only has been accused of wrongdoing; who is presumed innocent until proven otherwise; and who is entitled to pursue a living and to support a family. At the same time, courts are aware that bail needs to be set sufficiently high to ensure that the defendant will return for trial. Defendants are less likely to flee the jurisdiction when they would forfeit large amounts of money as a result. Courts are also aware that they must protect communities from the harm presented by particularly dangerous defendants. In this regard, the U.S. Supreme Court has permitted lower courts to deny bail for defendants who would create abnormally dangerous risks to the community if released.

Appellate courts usually defer to lower courts' decisions when a criminal penalty is challenged under the Excessive Fines and Excessive Bail Clauses of the Eighth Amendment. They give much closer scrutiny to criminal penalties that are challenged under the Cruel and Unusual Punishments Clause. State and federal governments are prohibited from inflicting cruel and unusual punishments on a defendant, no matter how heinous the crime committed. The prohibition against CRUEL AND UNUSUAL PUNISHMENT by states derives from the doctrine of incorporation, through which selective liberties contained in the BILL OF RIGHTS have been applied to the states by the U.S. Supreme Court's interpretation of the DUE PROCESS and EQUAL PROTECTION Clauses of the FOURTEENTH AMENDMENT.

The Eighth Amendment requires that every punishment imposed by the government be commensurate with the offense committed by the defendant. Punishments that are disproportionately harsh will be overturned on appeal. Examples of punishments that have been overturned for being unreasonable are two Georgia

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statutes that prescribed the death penalty for rape and KIDNAPPING (Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 [1977]; Eberheart v. Georgia, 433 U.S. 917, 97 S. Ct. 2994, 53 L. Ed. 2d 1104 [1977]).

The U.S. Supreme Court has also ruled that criminal sentences that are inhuman, outrageous, or shocking to the social conscience are cruel and unusual. Although the Court has never provided meaningful definitions for these characteristics, the pertinent cases speak for themselves. For example, the Georgia Supreme Court explained that the Eighth Amendment was intended to prohibit barbarous...