Eighth Amendment: Banning Cruel and Unusual Punishment

Eighth AmendmentThe Eighth Amendment to the US Constitution is part of the Bill of Rights.  Along with the Fourth, Fifth and Sixth Amendments it recognizes procedural rights for persons accused of crimes.  The purpose of these procedural rights is to protect an individual’s inalienable natural right to liberty.  When originally ratified in 1791, the Bill of Rights protections applied only to the federal government.  The Fourteenth Amendment’s “Due Process Clause” extended these protections to individuals accused of crimes by state governments as well.

1641 Massachusetts Body of Liberties & 1776 Virginia Declaration of Rights

In 1641, The Massachusetts Bay Colony adopted a Body of Liberties with a right to bail and a prohibition on cruel and inhuman punishments. The Eighth Amendment’s language is virtually identical to the 1776 Virginia Declaration of Rights.

The Eighth Amendment reads as follows:

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

A defendant’s pre-trial detention is affected by the excessive bail clause. Excessive fines remain waiting a Supreme Court definition. Cruel and unusual punishment has been a major subject of Eighth Amendment litigation.

The Excessive Bail Clause

A person accused of a crime is presumed innocent until found guilty at a trial or pleads guilty in open court. It is difficult to prepare a defense and consult with counsel while in custody.

Bail is excessive when set at an amount higher than necessary to achieve a legitimate government purpose. If the purpose is to ensure a defendant’s appearance at trial, and if found guilty serve the sentence, then bail may not be set higher than needed to meet those ends.

To contest bail as excessive a defendant must ask for a reduction and if denied, appeal that decision. The Supreme Court has found that bail may be denied when it has been demonstrated that the defendant is a danger to the community.

The Excessive Fines Clause

The Supreme Court has not given definition to an excessive fine. In cases of indigents who may be imprisoned for failure to pay fines the Court has used the Equal Protection Clause of the Fourteenth Amendment and so has not addressed the amount of fines as excessive.

It is clear that large punitive damages in civil lawsuits are not covered by the Eighth Amendment. The Court has indicated that civil forfeiture proceedings where a person’s property is taken by the government related to a criminal proceeding may be subject to the Excessive Fines Clause, but the answer to that question has not been definitive.

The Cruel and Unusual Punishment Clause

Some punishments are forbidden entirely by the Cruel and Unusual Punishments Clause. In 1878, while upholding a sentence that a convicted murderer be “publicly shot” in Wilkerson v. Utah, the Supreme Court provided examples of punishment that would be cruel and unusual punishment for any crime:

  • drawing and quartering
  • public dissecting
  • burning alive
  • disemboweling 

These were the English punishments for treason when the Declaration of Independence was proposed and signed. The men pledging their lives, fortunes and sacred honor were risking the punishments that would be banned by the Constitution’s Eighth Amendment. It is impossible to understand the Constitution without knowledge of the Declaration.

The Death Penalty as Cruel and Unusual

In 1972, the Supreme Court outlined a test to determine if the death penalty[1] is banned by the Eighth Amendment in Furman v. Georgia. The elements of the test are:

  • 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. 

The Court found that sentences of death were being imposed in an arbitrary fashion, and that the discretion and lack of direction to given to judges and juries was resulting in some similarly situated defendants receiving death sentences while others did not.  The Court determined this was “cruel and unusual”.  As a result, no executions took place over the next four years while states revised their capital punishment laws.  Many of the revised laws provided for separate trials as to a defendant’s guilt and a second “trial” regarding the appropriate penalty.  The Supreme Court found such laws were not arbitrary in the 1976 case of Gregg v. Georgia  and executions resumed.

On January 17, 1977, convicted murderer Gary Gilmore told a Utah firing squad, “Let’s do it.” and became the first prisoner executed under the new death penalty laws.

Court Employs “Evolving Standards of Decency” To Limit Death Penalty 

Though the death penalty is recognized in the Constitution and is not “cruel and unusual” generally in the Eighth Amendment sense, the Supreme Court has found that it offends the constitution in certain circumstances.  In 1977, the Court found death was an inappropriate punishment for the crime of rape.  In 1982, the Court found the death penalty unconstitutional when applied to someone convicted of “felony murder”.[2]  In 2002, the Supreme Court determined that the execution of a mentally handicapped defendant was cruel and unusual.  In 2005, the Supreme Court determined that the execution of a person who was younger than 18 at the time the crime was committed was cruel and unusual.

[1]Arguments have been made that the death penalty itself is cruel and unusual.  The Constitution acknowledges the death penalty in both the Fifth and Fourteenth Amendments.  Despite arguments made that death is cruel and unusual, for it to be an unconstitutional penalty, the Constitution would need to be amended.

[2]“Felony murder” takes place when, while a felony is being committed, another person dies, although there was no intent by the offender to kill someone.  For example, if there’s a car chase following a crime and a pedestrian is hit and killed, there is the possibility of a charge of “felony murder”.  The Supreme Court has generally excluded the death penalty for cases involving felony murder, but it may be available for a defendant that has shown “reckless disregard” for human life.


For Further Reading



  1. […] up his argument by stating that “one day in prison for the crime of having a common cold, would be cruel and unusual”. Here he was recognizing that criminalization of a behavior without a guilty act or actus reus […]