We The People, Our Bill of Rights, and Why We Should Care: Part 8

Part 8: Amendment VIII
What it says:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (1).

What it means:

Broadly speaking, the Eighth Amendment protects people accused and convicted of a crime from an abusive government. It prevents the government from requiring unnecessary amounts of money to post bail. It also protects a convict from excessive monetary requirements for bail. Finally, and perhaps most importantly, it protects the convicted from excessive and abusive punishment.

Where it came from:

The Eighth Amendment has its genesis in the 1689 English Bill of Rights. The Excessive Bail Clause of the 1689 English Bill of Rights originated in response to the practice of judges setting excessive bails to avoid releasing defendants on writs of habeas corpus. (2). The basis of the cruel and unusual punishment clause was also created from English abuse and English remedy. In the 1600s, a man named Titus Oates was convicted of perjury. He was sentenced to life in prison, and to two days annually in the stocks and one day annually of whipping. (3). After a few years, Parliament enacted the English Bill of Rights, which expressly banned the infliction of cruel and unusual punishment. (4). Parliament then cited the punishment of Titus Oates as a reason for the cruel and unusual punishment clause. (5). During the Constitutional Convention, the amendment was lobbied by George Mason and Patrick Henry (6) and proposed to Congress by James Madison. (7). It was subsequently ratified as the Eighth Amendment to the Constitution.

Why it’s important today:

In a civilized society, one of the most important protections from tyranny is the prevention of excessive punishment. If the government was allowed to impose brutal punishments and crippling bail, the validity of the justice system would be undermined. One of the greatest thrusts of our criminal jurisprudence is that all individuals are human, and even in spite of a conviction, people must be treated as such. This amendment also fosters debate on topics such as torture and the death penalty. What constitutes “punishment” or “cruel and unusual?” These questions still plague American society and are not easily answered. However, the framework is there and it will the United States become a more moral and a more just society.

(1) U.S. Constitution, amend. 8.

(2) Edmin Meese III et al., The Heritage Guide to The Constitution Guide to the Constitution, http://www.heritage.org/constitution/#!/amendments/8/essays/161/cruel-and-unusual-punishment (last visited Aug 18, 2017).

(3) 10 How. St. Tr. 1079, 1316 K.B. 1685.

(4) 1 William & Mary Sess 2 c 2

(5) 8th Amendment – Definition, Examples, Cases, Processes, Legal Dictionary (2015), https://legaldictionary.net/8th-amendment/ (last visited Aug 18, 2017).

(6) Elliot, Jonathan, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787. . . . 5 vols. 2d ed. 1888. Reprint. New York: Burt Franklin, n.d.

(7) Cong. Register, I, 423-37 (also reported in Gazette of the US., 10 and 13 June 1789).

(8) Glossip v. Gross, 576 U.S. (2015).


Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.