The state of Virginia was the first to adopt the provision of the English Bill of Rights, for it was included in the Virginia Declaration of Rights of The Eighth Amendment is a part of the Bill of Rights, which are the first 10 Amendments to the United States Constitution and the framework to elucidate upon the freedoms of the individual.
The Bill of Rights was proposed and sent to the states by the first session of the First Congress. They were later ratified on December 15, The first 10 Amendments to the United States Constitution were introduced by James Madison as a series of legislative articles and came into effect as Constitutional Amendments following the process of ratification by three-fourths of the States on December 15, The Eighth Amendment forbids forms of punishments entirely while outlawing other forms of punishments that are excessive when related to the crime in question or compared to the competence of the aggressor.
The Supreme Court outlawed public dissecting, burning a perpetrator alive, drawing and quartering, or disemboweling regardless of the crime. The Supreme Court also outlawed the execution of any individual under the age of 18 or any individual who is mentally handicapped. The Supreme Court ruled that it was unconstitutional to fine an individual excessively based on their economic or financial standing. Additionally, the Supreme Court, through previous provisions instituted by the English Bill of Rights stated that excessive bail is not required; however, the Eighth Amendment also states that bail may be denied if the charges are grave and serious enough to terminate the option.
Wilkerson v. Many argue that capital punishment fails to advance any public good, that it is of a past era, and it should be eliminated. Proponents of the death penalty argue that some people have committed such atrocious crimes that they deserve death, and that the death penalty may deter others from committing atrocious crimes.
They also point out that the punishment is authorized in a majority of states, and public opinion polls continue to show broad support for it. There is not time or space here to answer all these questions, but the essays that follow will demonstrate differing ways of approaching several of them. This essay concerns the original meaning of the Cruel and Unusual Punishments Clause.
It argues that the Constitution should be interpreted in accordance with its original public meaning, and it demonstrates what effect such an interpretation would have in the real world. In recent years, some judges and scholars have argued that the meaning of the Constitution should change as societal values change. Dulles This approach allows the Supreme Court to get to whatever result it considers desirable, regardless of what the text of the Constitution actually means.
Originalists object to this approach for many reasons, including the fact that it is inconsistent with democratic principles and the rule of law. In response to the non-originalist approach to the Constitution, some judges and scholars — most prominently Justices Scalia and Thomas — have argued for a very narrow approach to original meaning that is almost willfully indifferent to current societal needs.
To understand their approach, let us revisit the four questions raised in the joint statement concerning the settled history and meaning of the Eighth Amendment: 1 What standard should the Court use in deciding whether a punishment is unconstitutionally cruel?
Justices Scalia and Thomas argue that the four questions raised above should be answered as follows: 1 The standards of cruelty that prevailed in , the year the Eighth Amendment was adopted, provide the appropriate benchmark for determining whether a punishment is cruel and unusual. If a punishment was acceptable in , it must be acceptable today.
A life sentence for a parking violation, for example, would not violate the Constitution. Since flogging, branding, and various forms of bodily mutilation were permissible in the Eighteenth Century, few modern forms of punishment are likely to fall into this category. In other words, a common punishment might be more cruel than a rare one: For example, it would be more cruel to commit torture on a mass scale than on rare occasions, not less.
The best way to understand this is to run through those four questions once again, using our new understanding of the original meaning of the Clause:. Rather, the benchmark is longstanding prior practice. If a given punishment has been continuously used for a very long time, this is powerful evidence that multiple generations of Americans have considered it reasonable and just. This does not mean that any punishment that was once part of our tradition can still be used today.
If a once-traditional punishment falls out of usage for several generations, it becomes unusual. If a legislature then tries to reintroduce it, courts should compare how harsh it is relative to those punishment practices that are still part of our tradition.
If a punishment is significantly harsher than punishments traditionally given for the same or similar crimes, it is cruel and unusual, even though the same punishment might be acceptable for other crimes. For example, it would be cruel and unusual to impose a life sentence for a parking violation, but not for murder. If it fell out of usage for multiple generations, however, it might become cruel and unusual. This has already occurred with respect to some once-traditional applications of the death penalty.
It is no longer constitutional to execute a person for theft, for example, because this punishment fell out of usage for this crime a long time ago, and the punishments that have replaced it are far less severe. If a court were to find that their effect is significantly harsher than the longstanding punishment practices they have replaced, it could appropriately find them cruel and unusual.
If the amounts are too large and people cannot pay them, they would have to stay in jail until their trial date. This would prevent an accused person from preparing their defense adequately, since it would be hard to prepare a defense from jail. In addition, allowing an accused person out on bail allows them to continue working to provide for their family and do other normal activities and also reduces expenses for the local jail since they will not have to house and feed the accused.
It is also not fair to leave a person in jail for a long period of time who has merely been accused of a crime because, in the American legal system, people are presumed to be innocent until they are proven guilty.
At this stage, they have merely been accused of wrong doing and nothing has yet been proven. At the same time, courts must set the bail to a sufficiently high amount so that the accused person will have an incentive to show up for their trial because if they do not show up, they will lose their money.
If the bail is too small, the person may flee or just not show up. Courts must also protect the community. So in some cases, they will not allow someone to pay bail and get out of jail. This happens if the alleged crime is particularly heinous or if releasing the person would cause some unusually dangerous threat to the community. The Excessive Fines Clause prevents judges from levying excessive fines, but what amount is excessive?
In actuality, fines are rarely overturned by higher courts unless the judge abused his discretion when imposing the fine. Using this standard, a higher court may reverse a lower court's arbitrary, exorbitant fines if they are "so grossly excessive as to amount to a deprivation of property without due process of law," Water-Pierce Oil Co.
Fines are rarely reversed due to any of these 8th Amendment conditions. Appeals courts usually defer to the lower courts in cases regarding challenges based on violations of the Excessive Bail Clause or Excessive Fines Clause. Courts give much more scrutiny, however, to cases alleging violations of the Cruel and Unusual Punishments Clause. Catherine Hayes burning at the stake for murdering her husband Tyburn, England, The 8th Amendment requires that punishments for crimes be in proportion to the crime committed.
Punishments that are far greater than the crime should demand can be overturned by a higher court. For example, the courts have ruled that the death penalty is out of proportion to any other crime than one where a murder is committed, except for crimes against the government such as treason and spying.
The courts have also ruled that if a sentence is inhuman, outrageous, or shocking to the social conscience, it is a cruel and unusual punishment under the 8th Amendment. Such things as burning at the stake, castration, crucifixion, breaking on the wheel, cutting off body parts and so on, fall into this category.
In particular, cases involving the death penalty have received a lot of scrutiny in regards to the 8th Amendment. There are some people who believe all death penalties constitute a cruel and unusual punishment.
Others disagree, believing that death is an appropriate punishment in some cases. The courts have generally decided that death is an appropriate punishment for murder, but not for other crimes. Even so, the death penalty is "cruel and unusual" if there are mitigating factors that would prohibit death as a punishment, such as if the convicted person was mentally incompetent at the time the crime was committed.
The 8th Amendment has its origin in the British Magna Carta of In it, the idea that punishments ought to fit the crime was codified in the following words - "A free man shall not be [fined] for a small offense unless according to the measure of the offense, and for a great offense he shall be [fined] according to the greatness of the offense.
In , this principle was put into the English Bill of Rights by Parliament, declaring "as their ancestors in like cases have usually done Oates was tried and convicted of lying in court. Several people had been executed as a result of his untrue statements in court. The punishment he received included imprisonment and an annual ordeal which included being confined in a pillory for two days and one day of being whipped while tied to a moving cart.
The pillory is a device where the person's head and hands are secured in a wooden frame, which is usually placed in a public place where passersby can taunt them and throw garbage at them. The main purpose for such a device is public humiliation.
Both of these punishments, the pillory and whipping, were common punishments at that time. What was so offensive to the English people was the fact that the punishment was to be given over and over again every year. Though the punishments were ordinary, they became extraordinary and excessive due to their repetition year after year. Members of Parliament referred to the Titus Oates case specifically when explaining why they wrote these provisions about excessive punishment into the English Bill of Rights of The famous British jurist and judge Sir William Blackstone is one of the most often quoted persons by the Founding Fathers.
He was the preeminent lawyer and legal analyst of his time and his writings were studied and adhered to by generations of English lawyers. In Blackstone's Commentaries on the Laws of England , he says that the "cruel and unusual punishments clause" was added to restrict the discretion of judges and make them follow established and acceptable precedent:.
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 Read Blackstone's complete comments about the proportionality of punishment to a crime here.
This Declaration of Rights was written by George Mason and included the phrase, "That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted," which was drawn nearly word for word from the English Bill of Rights of The Virginia Declaration of Rights was the first statement of belief regarding the rights of man by any American government.
It predated the Virginia Constitution by several weeks and the Declaration of Independence by a few months. Thomas Jefferson is thought to have drawn many ideas for the Declaration of Independence directly from the Virginia Declaration of Rights. See our page about how Thomas Jefferson and the Declaration of Independence here. It is clear that the Founding Fathers were intent to prevent any government from laying abusive fines or punishments on anyone.
When it came time to debate whether or not to adopt the United States Constitution , the issue arose once again. Again the state of Virginia proposed that a Bill of Rights be added to the Constitution and that a statement prohibiting excessive punishments should be included. Both Virginia and Massachusetts insisted that such a Bill of Rights be added.
James Madison , the author of the amendments, included the 8th Amendment in his original list of twelve amendments. The first Congress and the states adopted ten of them. These first ten amendments are known as the Bill of Rights.
They included the 8th Amendment , which read almost exactly as Mason wrote it into the Virginia Declaration of Rights:. Over the years, the Supreme Court has basically determined that the 8th Amendment forbids some punishments completely, while forbidding other punishments that are excessive in comparison to the crime, or in comparison to the mental competence of the accused. In Wilkerson v. Utah, , the Supreme Court commented that drawing and quartering, burning alive, disembowelling and public dissecting would constitute cruel and unusual punishment under the 8th Amendment no matter what the crime, but they did not make their first ruling overturning a case regarding an allegation of cruel and unusual punishment, until In this case, Weems v.
United States , the Supreme Court overturned a practice called cadena temporal , which ordered "hard and painful labor," shackling for the length of incarceration and severe civil restrictions. This case is often viewed as establishing a "principle of proportionality," meaning the punishment must be in proportion to the crime. In later years, however, some justices on the Court have begun turning away from this principle, in favor of the notion that the 8th Amendment does not contain any promise regarding proportionality, but instead is meant only to insure that certain punishments are forbidden regardless of the circumstances.
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