Supriya Ghosh (Editor)

Eighth Amendment to the United States Constitution

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Eighth Amendment to the United States Constitution

The Eighth Amendment (Amendment VIII) of the United States Constitution prohibits the federal government from imposing excessive bail, excessive fines, or cruel and unusual punishment. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual Punishment Clause also applies to the states. The phrases in this amendment originated in the English Bill of Rights of 1689. This amendment was adopted on December 15, 1791, along with the rest of the United States Bill of Rights.



The amendment as proposed by Congress in 1789 reads as follows:

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


The Eighth Amendment was adopted, as part of the Bill of Rights, in 1791. It is almost identical to a provision in the English Bill of Rights of 1689, in which Parliament declared, "as their ancestors in like cases have usually done...that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

The provision was largely inspired by the case in England of Titus Oates who, after the ascension of King James II in 1685, was tried for multiple acts of perjury which had caused many executions of people whom Oates had wrongly accused. Oates was sentenced to imprisonment including an annual ordeal of being taken out for two days pillory plus one day of whipping while tied to a moving cart. The Oates case eventually became a topic of the U.S. Supreme Court’s Eighth Amendment jurisprudence. The punishment of Oates involved ordinary penalties collectively imposed in a barbaric, excessive and bizarre manner. The reason why the judges in Oates' perjury case were not allowed to impose the death penalty (unlike in the cases of those whom Oates had falsely accused) may be because such a punishment would have deterred even honest witnesses from testifying in later cases.

England’s declaration against "cruel and unusual punishments" was approved by Parliament in February 1689, and was read to King William III and his wife Queen Mary II on the following day. Members of Parliament then explained in August 1689 that "the Commons had a particular regard…when that Declaration was first made" to punishments like the one that had been inflicted by the King's Bench against Titus Oates. Parliament then enacted the English Bill of Rights into law in December 1689. Members of parliament characterized the punishment in the Oates case as not just "barbarous" and "inhuman" but also "extravagant" and "exorbitant".

In England, the "cruel and unusual punishments" clause was a limitation on the discretion of judges, and required judges to adhere to precedent. According to the great treatise of the 1760s by William Blackstone entitled Commentaries on the Laws of England:

[H]owever unlimited the power of the court may seem, it is far from being wholly arbitrary; but its discretion is regulated by law. For the bill of rights has particularly declared, that excessive fines ought not to be imposed, nor cruel and unusual punishments inflicted: (which had a retrospect to some unprecedented proceedings in the court of king's bench, in the reign of king James the second)....

Virginia adopted this provision of the English Bill of Rights in the Virginia Declaration of Rights of 1776, and the Virginia convention that ratified the U.S. Constitution recommended in 1788 that this language also be included in the Constitution.

Virginians such as George Mason and Patrick Henry wanted to ensure that this restriction would also be applied as a limitation on Congress. Mason warned that, otherwise, Congress may "inflict unusual and severe punishments." Henry emphasized that Congress should not be allowed to depart from precedent:

What has distinguished our ancestors?--That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany....

Ultimately, Henry and Mason prevailed, and the Eighth Amendment was adopted. James Madison changed "ought" to "shall", when he proposed the amendment to Congress in 1789.

Excessive bail

In England, sheriffs originally determined whether to grant bail to criminal suspects. Since they tended to abuse their power, Parliament passed a statute in 1275 whereby bailable and non-bailable offenses were defined. The King's judges often subverted the provisions of the law. It was held that an individual may be held without bail upon the Sovereign's command. Eventually, the Petition of Right of 1628 argued that the King did not have such authority. Later, technicalities in the law were exploited to keep the accused imprisoned without bail even where the offenses were bailable; such loopholes were for the most part closed by the Habeas Corpus Act 1679. Thereafter, judges were compelled to set bail, but they often required impracticable amounts. Finally, the English Bill of Rights (1689) held that "excessive bail ought not to be required." Nevertheless, the Bill did not determine the distinction between bailable and non-bailable offenses. Thus, the Eighth Amendment has been interpreted to mean that bail may be denied if the charges are sufficiently serious. The Supreme Court has also permitted "preventive" detention without bail. In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court held that the only limitation imposed by the bail clause is that "the government's proposed conditions of release or detention not be 'excessive' in light of the perceived evil." In Stack v. Boyle, 342 U.S. 1 (1951), the Supreme Court declared that a bail amount is "excessive" under the Eighth Amendment if it were "a figure higher than is reasonably calculated" to ensure the defendant's appearance at trial.

Waters-Pierce Oil Co. v. Texas

In Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1909), the Supreme Court held that excessive fines are those which are "so grossly excessive as to amount to a deprivation of property without due process of law." The Court wrote in its syllabus:

The fixing of punishment for crime and penalties for unlawful acts is within the police power of the state, and this Court cannot interfere with state legislation in fixing fines, or judicial action in imposing them, unless so grossly excessive as to amount to deprivation of property without due process of law. Where a state antitrust law fixed penalties at $5,000 a day, and, after verdict of guilty for over 300 days, a defendant corporation was fined over $1,600,000, this Court will not hold that the fine is so excessive as to amount to deprivation of property without due process of law where it appears that the business was extensive and profitable during the period of violation, and that the corporation has over $40,000,000 of assets and has declared dividends amounting to several hundred percent

The Court further stated in its opinion:

[I]t is contended that the fines imposed are so excessive as to constitute a taking of the defendant's property without due process of law. It is not contended in this connection that the prohibition of the Eighth Amendment to the federal Constitution against excessive fines operates to control the legislation of the states. The fixing of punishment for crime or penalties for unlawful acts against its laws is within the police power of the state. We can only interfere with such legislation and judicial action of the states enforcing it if the fines imposed are so grossly excessive as to amount to a deprivation of property without due process of law.

In Waters-Pierce Oil Co. v. Texas the Supreme Court set up a standard for judging whether or not a fine is "excessive." The standard set up is that a fine must not be "so grossly excessive as to amount to deprivation of property without due process of law." In other words, the government must not be able to confiscate such a large amount of property without following an established set of rules created by the legislature.

Browning-Ferris v. Kelco

In Browning-Ferris Industries v. Kelco Disposal, 492 U.S. 257 (1989), the Supreme Court ruled that the Excessive Fines Clause does not apply "when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded." While punitive damages in civil cases are not covered by the Excessive Fines Clause, such damages were held to be covered by the Due Process Clause of the Fourteenth Amendment, notably in State Farm v. Campbell, 538 U.S. 408 (2003).

United States v. Bajakajian

In United States v. Bajakajian, 524 U.S. 321 (1998), the Supreme Court ruled that it was unconstitutional to confiscate $357,144 from Hosep Bajakajian who failed to report possession of over $10,000 while leaving the United States. In what was the first case in which the Supreme Court ruled a fine to violate the Excessive Fines Clause, the Court held that it was "grossly disproportional" to take all of the money which Mr. Bajakajian attempted to take out of the United States, in violation of a federal law that required him to report an amount in excess of $10,000. In describing what constituted "gross disproportionality," the Court could not find any guidance from the history of the Excessive Fines Clause and so relied on Cruel and Unusual Punishment Clause case law:

We must therefore rely on other considerations in deriving a constitutional excessiveness standard, and there are two that we find particularly relevant. The first, which we have emphasized in our cases interpreting the Cruel and Unusual Punishments Clause, is that judgments about the appropriate punishment for an offense belong in the first instance to the legislature. See, e.g., Solem v. Helm, 463 U.S. 277, 290 (1983) ("Reviewing courts … should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes"); see also Gore v. United States, 357 U.S. 386, 393 (1958) ("Whatever views may be entertained regarding severity of punishment, … these are peculiarly questions of legislative policy"). The second is that any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise. Both of these principles counsel against requiring strict proportionality between the amount of a punitive forfeiture and the gravity of a criminal offense, and we therefore adopt the standard of gross disproportionality articulated in our Cruel and Unusual Punishments Clause precedents. See, e.g., Solem v. Helm, supra, at 288; Rummel v. Estelle, 445 U.S. 263, 271 (1980).

Thus the Court declared that, within the context of judicial deference to the legislature's power to set punishments, a fine would not offend the Eighth Amendment unless it were "grossly disproportional to the gravity of a defendant's offense."

Cruel and unusual punishments

According to the Supreme Court, the Eighth Amendment forbids some punishments entirely, and forbids some other punishments that are excessive when compared to the crime, or compared to the competence of the perpetrator.

In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), the Supreme Court assumed arguendo that the Cruel and Unusual Punishments Clause applied to the states through the Due Process Clause of the Fourteenth Amendment. In Robinson v. California, 370 U.S. 660 (1962), the Court ruled that it did apply to the states through the Fourteenth Amendment. Robinson was the first case in which the Supreme Court applied the Eighth Amendment against the state governments through the Fourteenth Amendment. Before Robinson, the Eighth Amendment had only been applied previously in cases against the federal government.

Justice Potter Stewart's opinion for the Robinson Court held that "infliction of cruel and unusual punishment is in violation of the Eighth and Fourteenth Amendments." The framers of the Fourteenth Amendment, such as John Bingham, had discussed this subject:

Many instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, "cruel and unusual punishments" have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none.

In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."

  • The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," especially torture.
  • "A severe punishment that is obviously inflicted in wholly arbitrary fashion."
  • "A severe punishment that is clearly and totally rejected throughout society."
  • "A severe punishment that is patently unnecessary."
  • Justice Brennan also wrote that he expected no state would pass a law obviously violating any one of these principles, so court decisions regarding the Eighth Amendment would involve a "cumulative" analysis of the implication of each of the four principles. In this way, the United States Supreme Court "set the standard that a punishment would be cruel and unusual [,if] it was too severe for the crime, [if] it was arbitrary, if it offended society's sense of justice, or if it was not more effective than a less severe penalty."

    Punishments forbidden regardless of the crime

    In Wilkerson v. Utah, 99 U.S. 130 (1878), the Supreme Court commented that drawing and quartering, public dissection, burning alive, or disembowelment constituted cruel and unusual punishment. In Thompson v. Oklahoma, 487 U.S. 815 (1988), the Supreme Court ruled that the death penalty constituted cruel and unusual punishment if the defendant is under age 16 when the crime was committed. Furthermore, in Roper v. Simmons, 543 U.S. 551 (2005), the Court barred the executing of people who were under age 18 when the crime was committed. In Atkins v. Virginia, 536 U.S. 304 (2002), the Court declared that executing people who are mentally handicapped constituted cruel and unusual punishment.

    Punishments forbidden for certain crimes

    The case of Weems v. United States, 217 U.S. 349 (1910), marked the first time that the Supreme Court exercised judicial review to overturn a criminal sentence as cruel and unusual. The Court overturned a punishment called cadena temporal, which mandated "hard and painful labor," shackling for the duration of incarceration, and permanent civil disabilities. This case is often viewed as establishing a principle of proportionality under the Eighth Amendment. However, others have written that "it is hard to view Weems as announcing a constitutional requirement of proportionality."

    In Trop v. Dulles, 356 U.S. 86 (1958), the Supreme Court held that punishing a natural-born citizen for a crime by revoking his citizenship is unconstitutional, being "more primitive than torture" because it involved the "total destruction of the individual's status in organized society."

    In Robinson v. California, 370 U.S. 660 (1962), the Court decided that a California law authorizing a 90-day jail sentence for "be[ing] addicted to the use of narcotics" violated the Eighth Amendment, as narcotics addiction "is apparently an illness," and California was attempting to punish people based on the state of this illness, rather than for any specific act. The Court wrote:

    "To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold."

    However, in Powell v. Texas, 392 U.S. 514 (1968), the Court upheld a statute barring public intoxication by distinguishing Robinson on the basis that Powell dealt with a person who was drunk in public, not merely for being addicted to alcohol.

    Traditionally, the length of a prison sentence was not subject to scrutiny under the Eighth Amendment, regardless of the crime for which the sentence was imposed. It was not until the case of Solem v. Helm, 463 U.S. 277 (1983), that the Supreme Court held that incarceration, standing alone, could constitute cruel and unusual punishment if it were "disproportionate" in duration to the offense. The Court outlined three factors that were to be considered in determining if the sentence is excessive: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." The Court held that in the circumstances of the case before it and the factors to be considered, a sentence of life imprisonment without parole for cashing a $100 check on a closed account was cruel and unusual.

    However, in Harmelin v. Michigan, 501 U.S. 957 (1991), a fractured Court retreated from the Solem test and held that for non-capital sentences, the Eighth Amendment only constrains the length of prison terms by a "gross disproportionality principle." Under this principle, the Court sustained a mandatory sentence of life without parole imposed for possession of 672 grams (1.5 pounds) or more of cocaine. The Court acknowledged that a punishment could be cruel but not unusual, and therefore not prohibited by the Constitution. Additionally, in Harmelin, Justice Scalia, joined by Chief Justice Rehnquist, said "the Eighth Amendment contains no proportionality guarantee," and that "what was 'cruel and unusual' under the Eighth Amendment was to be determined without reference to the particular offense." Scalia wrote "If 'cruel and unusual punishments' included disproportionate punishments, the separate prohibition of disproportionate fines (which are certainly punishments) would have been entirely superfluous." Moreover, "There is little doubt that those who framed, proposed, and ratified the Bill of Rights were aware of such provisions [outlawing disproportional punishments], yet chose not to replicate them."

    In Graham v. Florida, 560 U.S. ___ (2010), the Supreme Court declared that a life sentence without any chance of parole, for a crime other than murder, is cruel and unusual punishment for a minor. Two years later, in Miller v. Alabama, 567 U.S. ___ (2012), the Court went further, holding that mandatory life sentences without parole cannot be imposed on minors, even for homicide.

    Death penalty for rape

    In Coker v. Georgia, 433 U.S. 584 (1977), the Court declared that the death penalty was unconstitutionally excessive for rape of a woman and, by implication, for any crime where a death does not occur. The majority in Coker stated that "death is indeed a disproportionate penalty for the crime of raping an adult woman." The dissent countered that the majority "takes too little account of the profound suffering the crime imposes upon the victims and their loved ones." The dissent also characterized the majority as "myopic" for only considering legal history of "the past five years".

    In Kennedy v. Louisiana, 554 U.S. 407 (2008), the Court extended the reasoning of Coker by ruling that the death penalty was excessive for child rape "where the victim’s life was not taken." The Supreme Court failed to note a federal law, which applies to military court-martial proceedings, providing for the death penalty in cases of child rape. On October 1, 2008, the Court declined to reconsider its opinion in this case, but did amend the majority and dissenting opinions in order to acknowledge that federal law. Justice Scalia (joined by Chief Justice Roberts) wrote in dissent that "the proposed Eighth Amendment would have been laughed to scorn if it had read 'no criminal penalty shall be imposed which the Supreme Court deems unacceptable.'"

    Special procedures for death penalty cases

    The first significant general challenge to capital punishment that reached the Supreme Court was the case of Furman v. Georgia, 408 U.S. 238 (1972). In a 5–4 decision, the Supreme Court overturned the death sentences of Furman for murder, as well as two other defendants for rape. Of the five justices voting to overturn the death penalty, two found capital punishment to be unconstitutionally cruel and unusual, while three found that the statutes at issue were implemented in a random and capricious fashion, discriminating against blacks and the poor. Furman v. Georgia did not hold – even though it is sometimes claimed that it did – that capital punishment is per se unconstitutional.

    States with capital punishment rewrote their laws to address the Supreme Court's decision, and the Court then revisited the issue in a murder case: Gregg v. Georgia, 428 U.S. 153 (1976). In Gregg, the Court found, in a 7–2 ruling, that Georgia's new death penalty laws passed Eighth Amendment scrutiny: the statutes provided a bifurcated trial in which guilt and sentence were determined separately; and, the statutes provided for "specific jury findings" followed by state supreme court review comparing each death sentence "with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate." Because of the Gregg decision, executions resumed in 1977.

    Some states have passed laws imposing mandatory death penalties in certain cases. The Supreme Court found these laws to be unconstitutional under the Eighth Amendment, in the murder case of Woodson v. North Carolina, 428 U.S. 280 (1976), because these laws remove discretion from the trial judge to make an individualized determination in each case. Other statutes specifying factors for courts to use in making their decisions have been upheld. Some have not: in Godfrey v. Georgia, 446 U.S. 420 (1980), the Supreme Court overturned a sentence based upon a finding that a murder was "outrageously or wantonly vile, horrible, and inhuman," as it deemed that any murder may be reasonably characterized in this manner. Similarly, in Maynard v. Cartwright, 486 U.S. 356 (1988), the Court found that an "especially heinous, atrocious or cruel" standard in a homicide case was too vague. However, the meaning of this language depends on how lower courts interpret it. In Walton v. Arizona, 497 U.S. 639 (1990), the Court found that the phrase "especially heinous, cruel, or depraved" was not vague in a murder case, because the state supreme court had expounded on its meaning.

    The Court has generally held that death penalty cases require extra procedural protections. As the Court said in Herrera v. Collins, 506 U.S. 390 (1993), which involved the murder of a police officer, "the Eighth Amendment requires increased reliability of the process..."

    Punishments specifically allowed

    In Wilkerson v. Utah, 99 U.S. 130 (1878), the Court stated that death by firing squad was not cruel and unusual punishment under the Eighth Amendment.

    In Rummel v. Estelle, 445 U.S. 263 (1980), the Court upheld a life sentence with the possibility of parole imposed per Texas's three strikes law for fraud crimes totaling $230. A few months after pleading guilty Rummel was released.

    In Harmelin v. Michigan, 501 U.S. 957 (1991), the Court upheld a life sentence without the possibility of parole for possession of 672 grams (1.5 pounds) of cocaine.

    In Lockyer v. Andrade, 538 U.S. 63 (2003), the Court upheld a 50 years to life sentence with the possibility of parole imposed under California's three strikes law when the defendant was convicted of shoplifting videotapes worth a total of about $150.

    Evolving standards of decency

    In Trop v. Dulles, 356 U.S. 86 (1958), Chief Justice Earl Warren said: "The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Subsequently, the Court has looked to societal developments, as well as looking to its own independent judgment, in determining what are those "evolving standards of decency".

    Originalists like Justice Antonin Scalia argue that societies may rot instead of maturing, and may decrease in virtue or wisdom instead of increasing. Thus, they say, the framers wanted the amendment to be understood as it was written and ratified, instead of morphing as times change, and in any event legislators are more competent than judges to take the pulse of the public as to changing standards of decency.

    The "evolving standards" test is not without its scholarly critics as well. For example, Professor John Stinneford asserts that the "evolving standards" test misinterprets the Eighth Amendment:

    The Framers of the Bill of Rights understood the word "unusual" to mean "contrary to long usage." Recognition of the word’s original meaning will precisely invert the "evolving standards of decency" test, and ask the Court to compare challenged punishments with the longstanding principles and precedents of the common law, rather than shifting and nebulous notions of "societal consensus" and contemporary "standards of decency."

    On the other hand, Professor Dennis Baker defends the evolving standards of decency test as advancing the moral purpose of the Eighth Amendment to ban all forms of unjust punishment.


    The Court has applied evolving standards not only to say what punishments are inherently cruel, but also to say what punishments that are not inherently cruel are nevertheless "grossly disproportionate" to the offense in question. An example can be seen in Jackson v. Bishop (8th Cir., 1968), an Eighth Circuit decision outlawing corporal punishment in the Arkansas prison system: "The scope of the Amendment is not static....[D]isproportion, both among punishments and between punishment and crime, is a factor to be considered...."

    Professor Stinneford asserts that the Eighth Amendment forbids punishments that are very disproportionate to the offense, even if the punishment by itself is not intrinsically barbaric, but Stinneford argues that "proportionality is to be measured primarily in terms of prior practice" according to the word "unusual" in the amendment, instead of being measured according to shifting and nebulous evolving standards. Similarly, Professor John Bessler points to "An Essay on Crimes and Punishments," written by Cesare Beccaria in the 1760s, which advocated proportionate punishments; many of the Founding Fathers, including Thomas Jefferson and James Madison, read Beccaria's treatise and were influenced by it.

    Thus, Stinneford and Bessler disagree with the view of Justice Scalia, joined by Chief Justice Rehnquist, in Harmelin v. Michigan where they denied that the Punishments Clause contains any proportionality principle. With Scalia and Rehnquist, Richard Epstein argues that the amendment does not refer broadly to the imposition of penalties, but rather refers more narrowly to the penalties themselves; Epstein says that judges who favor the broad view tend to omit the letter "s" at the end of the word "punishments".


    Eighth Amendment to the United States Constitution Wikipedia