The eighth Amendment

by Kapp L. Johnson 

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

One of the original 10 in the Bill of Rights, the Eighth Amendment was ratified on Dec. 15, 1791. Most often mentioned in the context of the death penalty, it prohibits cruel and unusual punishments, but also mentions “excessive fines” and bail. The “excessive fines” clause often surfaces in cases of civil and criminal forfeiture, for example when property is seized during a drug raid.

The bail clause, with slight changes, comes from the English Bill of Rights Act of 1689. In England, that clause was not thought to accord a right to bail in all cases but rather to provide that bail shall not be excessive in cases where it is proper to grant bail. Modernly, however, the Supreme Court has associated this right with the presumption of innocence. Here, the right to bail preserves the traditional right to freedom before conviction.  

The excessive fines clause has not generated much attention from the Supreme Court. At the time the amendment was adopted, the word “fine” meant a payment to a sovereign as punishment for some offense. Thus, the Supreme Court concluded that “The Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government” in Browning-Ferris v. Kelco Disposal Inc. Nevertheless, the Supreme Court has held that the Excessive Fines Clause can be applied in civil and criminal forfeiture.

The cruel and unusual punishment clause is mostly applied in the context of the death penalty.  The Supreme Court has held that the amendment forbids some punishments entirely, and prohibits other punishments that are excessive when considering the offense or the competence of the offender. Moreover, the amendment is applied to states via the Due Process Clause of the 14th Amendment. The court has applied this clause to capital punishment (allowed with review), proportionality (the punishment cannot be greatly disproportionate to the offense), and prisons and punishment (conditions cannot be grossly disproportionate to the severity of the criminal offense nor involve wanton and unnecessary infliction of pain).

The Eighth Amendment applies only to criminal punishment. It has no application to civil processes.

Kapp L. Johnson is a senior lecturer in ethics and law in the School of Management at California Lutheran University. He holds a doctorate from the University of La Verne College of Law and is a member of the California Bar Association.