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.
Should it look to the standards of , when the Eighth Amendment was adopted? Should it look to contemporary public opinion? Should it exercise its own moral judgment, irrespective of whether it is supported by societal consensus?
Should it look to some other standard? Second, does the Cruel and Unusual Punishments Clause only prohibit barbaric methods of punishment, or does it also prohibit punishments that are disproportionate to the offense?
For example, would it violate the Eighth Amendment to impose a life sentence for a parking violation? Third, does the Cruel and Unusual Punishments Clause prohibit the death penalty? 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. Nor is there much evidence indicating that the Framers intended their understanding of the Constitution to be binding on subsequent generations. Another criticism of the narrow, originalist approach emanates from the language of the Eighth Amendment itself.
Proponents of this viewpoint observe that the Eighth Amendment is written in very abstract language. It prohibits "excessive" bail and "excessive" fines, and does not set forth any specific amount that judges may use as a yardstick when setting bail or imposing fines.
Although it prohibits cruel and unusual punishments, it does not enumerate which criminal penalties should be abolished. The Framers could have drafted the Eighth Amendment to explicitly outlaw certain barbaric punishments. They obviously were familiar with ways to draft constitutional provisions with such specificity.
The Framers could have employed similar concrete language for the Eighth Amendment, some critics reason, but did not choose to do so. Although there is not enough evidence to determine conclusively the appropriate manner in which the Framers expected or hoped that the Constitution would be interpreted, the origins of the Eighth Amendment are fairly clear.
The notion that the severity of a punishment should bear some relationship to the severity of the criminal offense is one of the oldest in Anglo-Saxon law.
In , the MAGNA CHARTA , the ancient charter of English liberties, provided, "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" ch. By the seventeenth century, England had extended this principle to punishments that called for incarceration.
In one case, the King's Court ruled that "imprisonment ought always to be according to the quality of the offence" Hodges v. Humkin , 2 Bulst. In , the principle of proportionality was incorporated into the English Bill of Rights, which used language that the Framers of the U. Constitution later borrowed for the Eighth Amendment: "[E]xcessive bail ought not to be required, nor excessive fines imposed, or cruel and unusual punishments inflicted. The concerns underlying the Eighth Amendment were voiced in two state-ratification conventions.
In Massachusetts, one representative expressed "horror" that Congress could "determine what kind of punishments shall be inflicted on persons convicted of crimes" and that nothing restrained Congress "from inventing the most cruel and unheard-of punishments" that would make "racks" and "gibbets" look comparatively "mild" as quoted in FURMAN V.
The concerns expressed by these representatives were legitimate in light of the punishments authorized by many states at the time the Eighth Amendment was ratified.
These punishments ranged from whipping, branding, and the pillory to various methods of mutilation, including the slitting of nostrils and the removal of body parts. The death penalty was also prevalent.
If James Madison or the other Framers intended to preserve these forms of punishment, they kept their intentions to themselves. Supreme Court continues to consider specific instances of punishment in order to determine whether they violate the Eighth Amendment.
In Hope v. Pelzer , U. Use of a hitching post, according to the Court, violated the Eighth Amendment. The prisoner in Hope brought a civil action against the officers, who claimed that they were protected by the doctrine of qualified IMMUNITY , which applies when state actors are not put on notice that their conduct violates judicial precedent or other federal or state law.
Precedent from the Eleventh Circuit Court of Appeals, which includes the state of Alabama, was clear that this type of punishment was unlawful.
Because the officers had had notice that their actions were unlawful, qualified immunity did not apply. Other punishments that have been the subject of Eighth Amendment challenges are the socalled "three strikes and you're out" laws, which increase punishment for repeat offenders.
This is called "preventive detention. The only limitation expressed in the Excessive Bail Clause , according to the Supreme Court , is that "the government's proposed conditions of release or detention not be 'excessive' in light of the perceived evil. Bail is "excessive" according to the Court, if it is set at a higher amount than is necessary to ensure the government's interest. If the only relevant interest is to guarantee that the accused will show up for trial, then "bail must be set by a court at a sum designed to ensure that goal, and no more.
In that case, bail can be denied if there is just reason to do so. The number one most litigated issue having to do with the 8th Amendment has been regarding the death penalty. The issue of the death penalty, as you may know, is one that elicits very strong emotions from its supporters and from its detractors. There are those who believe that capital punishment is just in the case of murder or other serious crimes such as rape.
There are other people who believe the death penalty should be banned whatsoever, believing that it is inhumane, making the government no better than the murderer. Those who support the death penalty often believe it provides a strong deterrent to others who may consider committing serious crimes.
Even among the Founding Fathers , there were differing opinions on this issue. Below, you can read short writings from several founders: Thomas Jefferson , who supported the death penalty, Benjamin Rush , who opposed it in all circumstances and James Wilson , who, while not mentioning the death penalty specifically, advocated less stringent punishments, believing that judges and juries would be less likely to impose them because of the squeamishness of human nature and that this would encourage more crime.
Whether or not capital punishment is legal is up to each state for state crimes. The other 37 states allow the death penalty, in addition to the federal government for certain federal crimes. The death penalty was allowed by the Supreme Court up until Before then, the death penalty was considered an acceptable form of punishment for certain serious crimes, especially murder, since the time of the original thirteen colonies, all of which allowed the death penalty.
By the mid 20th century, however, the Court's opinion about capital punishment began to shift slightly and in a pivotal case called Furman v. Georgia , the Supreme Court ruled that the death penalty could not be applied in an arbitrary or capricious manner. In other words, there did not seem to be any set of rules regarding which crimes would or would not receive the death penalty.
Indeed, the majority of justices in this case thought the death penalty was given merely because of the accused's race. This ruling caused all states that allowed the death penalty to stop executions and rewrite their death penalty laws. This angered many who were against the death penalty altogether, who had hoped that the Furman case would end the procedure permanently. By , the Court reviewed another series of cases regarding the states' new laws about the death penalty. In Gregg v.
Georgia , the Court upheld a procedure in which the trial and sentencing are "bifurcated" into two separate events - the trial where the guilt or innocence is determined and the sentencing. At the trial, the jury determines the defendant's guilt. At the second hearing, if the person was found guilty, the jury determines whether certain legal factors exist, such as whether or not a gun was used in the crime.
These legal factors that may affect the sentencing are written into law. In addition, the jury may consider any other mitigating factors, such as whether the person had reduced mental capacity.
The bifurcated trial set the Court's concerns about arbitrary application of the death penalty at ease and those states which wished to resume the practice did so in line with the new guidelines. In , Coker v. Georgia forbade the death penalty in a case of rape, on the grounds that taking someone's life was cruel and unusual if they had not taken someone else's life first.
This effectively barred the death penalty in all cases except for murder. The death penalty is still on the books for some other crimes in some states such as for aggravated rape in Louisiana, Florida and Oklahoma; drug trafficking resulting in a person's death in Connecticut and Florida; aggravated kidnapping in Georgia, Idaho, Kentucky and South Carolina; aircraft hijacking in Alabama; extortionate kidnapping in Oklahoma; and trainwrecking or perjury leading to a person's death in California.
However, in practice, no one has been executed for a crime other than murder or conspiracy to commit murder since In , in Kennedy v. Louisiana , the Supreme Court reiterated this rule by ruling against a Louisiana law that instituted the death penalty for child rapists. The Court ruled that:. The Court also stated that the death penalty for any crime against an individual, "where the victim's life was not taken," was unconstitutional.
There is a federal exception to the rule that the death penalty can only be applied, however, in cases of murder. The federal government is allowed to use the death penalty in cases of treason, espionage and crimes against the state. The Supreme Court placed two other severe restrictions on the use of the death penalty on 8th Amendment grounds. In , the Court ruled that executing a mentally retarded person was cruel and unusual. In general, a person is considered to be mentally retarded if they have an IQ less than Second, in the Court ruled that executions of people who were under 18 at the time of the crime are cruel and unusual and therefore violations of the 8th Amendment.
Their reasoning included the fact that teenagers are not as responsible for their actions as adults due to their youth and inexperience in life. For further information, read our 8th Amendment Court Cases page, which gives some detail about important cases regarding the 8th Amendment. If you would like to read about the meanings of each amendment, go to the First Ten Amendments page here.
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