presentation on 8th amendment

The Eighth Amendment

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

How the founders saw “Cruel and unusual punishment” in 1789

Cruel and unusual :

• Whippings of more than 40 lashings
• Cutting off hands
• Burning at the stake
• Death penalty for burglary or robbery
• disembowlment

NOT cruel and unusual :

• Whippings of less than 40 lashings
• Piercing of the tongue with hot iron
• Cutting off ears
• Death penalty for murder, rape
• Public humiliation

Trop v Dulles, 1959

• The definition of “cruel and unusual punishment” must change over time
• Court will refer to the “evolving standards of decency that mark the progress of a maturing society”
• what was considered acceptable in the past may be considered cruel in the future if society's standard of decency has evolved to reject the practice

Furman v. Georgia, 1972

Justice Brennan wrote, "There are four principles by which we may determine whether a particular punishment is 'cruel and unusual'.”

• The most important thing 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 (random or unpredictable) fashion."
• "A severe punishment that is clearly and totally rejected throughout society ."
• "A severe punishment that is patently (completely) unnecessary ."

Atkins v Virginia (2002)

• the Eighth Amendment should be interpreted in light of the "evolving standards of decency that mark the progress of a maturing society."
• The best evidence on this score was determined to be the judgment of state legislatures .
• a national consensus that the mentally retarded should not be executed had emerged
• unless it can be shown that executing the mentally retarded promotes the goals of retribution and deterrence , doing so is nothing more than "purposeless and needless imposition of pain and suffering", making the death penalty cruel and unusual in those cases

Roper v Simmons (2005)

• Under the "evolving standards of decency" test, the Court held that it was cruel and unusual punishment to execute a person who was under the age of 18 at the time of the murder.
• sociological and scientific research [1] that found that juveniles have a lack of maturity and sense of responsibility compared to adults
• In support of the "national consensus" position, the Court noted the increasing infrequency with which states were applying capital punishment for juvenile offenders
• looked to practices in other countries to support the holding: only seven countries other than the United States ha[d] executed juvenile offenders

Graham v Florida (2009)

• the Eight Amendment's Cruel and Unusual Punishments Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a non-homicidal crime
• life sentences for juveniles for non-homicidal crimes has been "rejected the world over.”
• juvenile offenders are generally less culpable than adults who commit the same crimes.

Death Penalty and Felony Murder

• The Eighth Amendment to the United States Constitution does not prohibit imposing the death penalty for felony murder
• Enmund v. Florida, (1982), the death penalty may not be imposed on someone who did not kill, attempt to kill, or intend that a killing take place.
• However, under Tison v. Arizona, (1987), the death penalty may be imposed on someone who was a major participant in the underlying felony and acted with reckless indifference to human life.

Eighth Amendment

Most often mentioned in the context of the death penalty , the Eighth Amendment prohibits cruel and unusual punishments, but also mentions “excessive fines” and bail . The “excessive fines” clause surfaces (among other places) in cases of civil and criminal forfeiture , for example when property is seized during a drug raid .

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Amendment viii.

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

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US government and civics

Course: us government and civics   >   unit 3.

• The Fourth Amendment

The Eighth Amendment

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Video transcript

Legal Dictionary

The Law Dictionary for Everyone

8th Amendment

The 8th Amendment to the United States Constitution , a part of the Bill of Rights , prohibits the federal government from imposing excessive fines, excessive bail , and cruel and unusual punishment. This is one of the shortest amendments to the Constitution, but it has a powerful effect, and has sparked a number of debates over the years since its ratification . To explore this concept, consider the following 8th Amendment definition.

Definition of 8th Amendment

• An amendment to the United States Constitution that prohibits the imposition of excessive fines, excessive bail, and cruel and unusual punishment.

Ratified on December 15, 1791.

What is the 8th Amendment

The 8th Amendment to the United States Constitution protects American citizens accused of a crime from being held on an amount of bail that is so excessive as to prevent them from gaining release from confinement to defend their cases. Additionally, this important addition to the Bill of Rights prohibits the government from leveling excessively high fines, or imposing punishment that is considered to be cruel and unusual, on convicted individuals.

Like many of the provisions of the U.S. Constitution and its amendments, the actual wording of the Eighth Amendment is a bit vague, making it the topic of some disagreement. Because of this, the Amendment has been a frequent topic of discussion and interpretation for the U.S. Supreme Court. The 8th Amendment says:

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

History of the 8th Amendment

The history of the 8th Amendment begins in England in the late 1600s, when a man named Titus Oates committed perjury against a number of people, leading to their receiving the death penalty. Later, Oates was convicted of these crimes of perjury and sentenced to indefinite imprisonment , as well as removal from his jail cell each year to spend two days in the pillory (stocks), and one day of whipping while tied to a moving cart.

A few short years later, Parliament enacted the English Bill of Rights, which prohibited the infliction of cruel and unusual punishment. In explaining the new provisions, Parliament explained that this prohibition stemmed directly from the punishment that had been inflicted on Titus Oates, whose punishment they described as exorbitant, extravagant, barbarous, and inhuman.

In drafting the American Bill of Rights, the framers took their cue directly from the English Bill of Rights, taking steps to ensure the government was prevented from inflicting cruel and unusual punishment. The Eighth Amendment was lobbied by George Mason and Patrick Henry, and then proposed to Congress by James Madison. It was ratified and added to the Bill of Rights on December 15, 1791.

Excessive Bail

The U.S. system of law is based on the concept that an “accused is presumed innocent until found guilty.” The purpose of bail is to provide a way for someone accused of a crime and taken into custody to be released pending his trial . To help ensure the accused returns for trial after his release, the system of bail was set up, in which the accused may post a specified amount of  money or other valuable item which will be returned to him only after he shows up for all of his scheduled court hearings and the matter is concluded.

The amount of bail required is set by the court, which considers the severity of the offense, and whether there are strong indicators that the accused might flee the jurisdiction to avoid trial. Such considerations include whether the accused has strong ties to family and community, steady employment in the community, and whether he has sufficient financial resources to flee.

The temptation to impose a bail amount that is so great that the individual has no possibility of securing his own release pending trial was seen in pre-Bill of Rights England. While modern courts in the U.S. have the authority to set a bail amount largely at their discretion, especially in cases of very serious crimes committed by very wealthy individuals, the Eighth Amendment protects individuals against abuse of this privilege.

The Supreme Court has interpreted the 8th Amendment to mean that bail can be denied if the charges are serious enough, or if it is reasonably believed that releasing the accused may pose a danger to the community. The Court also ruled that “preventative detention without bail” is allowed in certain circumstances. In the 1987 case United States vs. Salerno , the Supreme Court held that:

“… the government’s proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil.”

Excessive Fines

The excessive fines clause of the 8th Amendment is a bit more vague than the excessive bail and cruel and unusual punishment clauses. Because fines are imposed after a defendant has been convicted, and have nothing to do with depriving him of his liberty prior to trial, U.S. courts have greater discretion in imposing fines for criminal acts.

There are still checks and balances built into the system where fines are concerned, as, if a lower court imposes a fine determined by a higher court to be an abuse of discretion, the fine may be overturned by a higher court. This helps eliminate the imposition of fines that are arbitrary or excessive.

In the 1909 landmark case of Waters-Pierce Oil Co. v. Texas , the Supreme Court defined excessive fines as those that are:

” … so grossly excessive as to amount to a deprivation of property without due process of law.”

The court further held that the court cannot interfere with state legislation when it comes to fixing fine amounts, unless they are so excessive as to effectively amount to deprivation of property without due process. This means that a fine imposed by a state court can only be deemed excessive if there is no pre-existing state legislation specifying the nature and amount of the fine, or if the fine is so extreme as to take away the individual’s property rather than simply imposing a fine.

Supreme Court Ruling on Excessive Fine

In 1998, the U.S. Supreme Court heard the matter of United States v. Bajakajian, in which Mr. Bajakajian took more than $10,000 with him as he left the country, but failed to make the appropriate report. Bajakajian was convicted and fined $357,144 for not declaring the amount over $10,000 taken out of the country. The matter was appealed to the U.S. Supreme Court, which ruled that the fine was excessive, as it amounted to the entire amount of money the defendant at taken with him, and was therefore grossly disproportional to the offense committed.

Cruel and Unusual Punishment

The cruel and unusual punishment clause of the Eighth Amendment prohibits both federal and state governments from imposing certain punishments, regardless of the crime committed. While the Amendment does not specifically define punishments to be considered cruel and unusual, case law throughout U.S. history has deemed such punishments as castration, burning alive, drawing and quartering, public dissection, and any punishment designed to cause a lingering death, to be beyond the concept of public decency, and therefore cruel and unusual.

The Supreme Court has also held that any punishment handed down should be proportionate to the nature of the crime committed. In the 1972 case of Furman v. Georgia , the Court provided four basic principles to be used in determining whether a punishment should be considered cruel and unusual:

• Any punishment that is so severe as to degrade human dignity, including torture
• Any punishment that is inflicted solely in an arbitrary manner
• Any punishment that is, or would be, wholly rejected by society
• Any punishment that is clearly or blatantly unnecessary

Finally, the Supreme Court has ruled, in 1988, that the death penalty amounts to cruel and unusual punishment if applied to anyone who was under the age of 18 at the time the crime was committed. Additionally, the Court ruled that it would be cruel and unusual punishment to execute any mentally handicapped individual.

Death Penalty and the 8th Amendment

The death penalty has quite possibly been the most controversial topic of all time, with people, including judges, lining up on either side. Those opposing the death penalty claim that it is unconstitutional, in that it treats criminals as non-humans, and is therefore inconsistent with the fundamental protections of the 8th Amendment, that even the vilest criminal remains a human being, with a right to common human dignity.

Those supporting the death penalty for the most serious of crimes point out that execution has been used to rid society of its most violent criminals, and that, in the words of Chief Justice John G. Roberts:

“Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual …”

As the Supreme Court has ruled that the imposition of the death penalty is not a violation of the Constitution, or of the Eighth Amendment, the issue of whether to utilize the punishment is left to each individual state. As of July 1, 2015, 31 states have the death penalty, though four of those states have a moratorium imposed by the state’s governor.

Death Penalty States

Supreme court ruling on the death penalty and mentally retarded criminals.

In 1998, Daryl Atkins and his friend robbed and shot a man named Eric Nesbitt. Atkins was found guilty at trial of abduction , armed robbery , and capital murder . In spite of the fact that Dr. Evan Nelson testified at trial that Atkins suffered from mild mental retardation, the jury sentenced Atkins to be executed.

Atkins’ attorneys appealed the sentence to the Virginia Supreme Court, which upheld the lower court’s decision. When the matter was taken before the U.S. Supreme Court on the grounds that executing a person with a mental disability violated the protections of the 8th Amendment.

The Court agreed, stating that a trend had begun with certain states banning use of the death penalty for the mentally retarded, which shows “evolving standards of decency that mark the progress of a maturing society.” Justice Stevens went on to say that clearly “the practice, therefore, has become truly unusual.” As such, the imposition of the death penalty on anyone with a mental disability is unconstitutional.

Related Legal Terms and Issues

• Defendant — A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
• Due Process – – The fundamental, constitutional right to fair legal proceedings in which all parties will be given notice of the proceedings, and have an opportunity to be heard.
• Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
• Perjury – The willful telling of an untruth, or giving of false testimony, after having taken an oath.
• Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to make a determination in a civil matter.

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Chapter 8 – Amendment VIII: Defining Excessive and Cruel & Unusual Punishment

Amendment viii.

Richard J. Forst and Tauya R. Forst

LEARNING OBJECTIVES

After reading this chapter, you should be able to:

8.1  Define the unfamiliar terms of the Eighth Amendment. 

8.2  Explain the parts of the Eighth Amendment, including rights and freedoms. 

8.3  Determine how reasonable bail helps indigent defendants to avoid appearing guilty.

8.4  Compare the different bail options that may be available to a defendant.

8.5  Describe how the excessive fines clause has been leveraged by government to seize personal property.

8.6  Explain what factors are used to determine if something is cruel and unusual punishment.

8.7  Explain the factors used to determine if a fine is excessive.

Bail                                                                                 Fine  

Bail Bond                                                                     Imprisonment 

Cash Bail                                                                     Property

Cruel and Unusual Punishment                         Recognizance

Excessive Fine                                                            Writ of certiorari

Passed by Congress September 25, 1789. Ratified December 15, 1791. The first 10 amendments form the Bill of Rights.

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

Eighth Amendment: Banning Cruel and Unusual Punishment [1]

INTRODUCTION TO AMENDMENT VIII

As previously discussed, Amendment VIII is part and parcel of the Bill of Rights of the United States Constitution as introduced by James Madison.  This amendment, in its uniqueness, is almost an exact duplicate of the English Bill of Rights of 1689 (formerly known as An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown). [2]   The American Bill of Rights, Amendment VIII states “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted,” while the British Bill of Rights includes this language “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” [3]

Myth:  Every defendant is entitled to bail.

Following the English’s example, the American Eighth Amendment has it roots in the Titus Oates case.  Oates was tried by the court system for multiple crimes culminating in executions of many people who he wrongfully accused. [4]   As you may imagine, Oates’ trial ended without an execution, but included harsh penalties. [5]   As a result, there was a need to address how punishments are meted out and when they are appropriate and proportional.  In England “cruel and unusual punishment” was outlawed allowing judicial discretion to reasonably adhere to standards against “cruel and unusual” punishment. [6]   However, this approach resonated with the United States of America and the Framers began discussions to include the American Bill of Rights (amendments), once the original Constitution was ratified.  Thus, the Eighth Amendment boasts of three key portions which underscore how defendants are to be treated within the American criminal justice system.

ANALYSIS OF AMENDMENT VIII

Three parts of amendment viii, part i:  right against excessive bail.

Excessive bail shall not be required,

Excessive Bail Shall Not Be Required [7]

Bail Schedule [9]

Because of this view, judges understand that the right against excessive bail does not support a right to bail for all detainees in all cases.  According to Black’s Law Dictionary, bail is defined as “[a] security such as cash, a bond, or property; esp., security required by a court for the release of a criminal defendant who must appear in court at a future time. [10]   There are four common types of bail which exist within the United States bail system:

• release on one’s own recognizance,
• property bond, and

Each of these types of bail produces an ability to allow the accused to answer to criminal charges while remaining in the community.  If an accused seeks bail, then the best option is receiving bail on one’s own recognizance.  Being released on one’s own recognizance is the least pretrial condition, as it only requires the accused to sign a promise to return to court to answer for pending criminal charges.  Further, this type of release bears no financial burden for the accused.  There are many factors which a judge will consider when determining if a defendant is a good match for release on one’s own recognizance.

The judge considers personal aspects of the accused to determine eligibility such as:

1.   criminal history,

2.  the seriousness of criminal charges,

3.  propensity to flee from the trial as well as

4.  the accused’s behavior within the community. [11]

According to Black’s Law Dictionary, recognizance is defined as “[a] bond or obligation, made in court, by which a person promises to perform some act or observe some condition, such as to appear when called, to pay a debt, or to keep the peace; specif., an in-court acknowledgment of an obligation in a penal sum, conditioned on the performance or nonperformance of a particular act.” [12]

Bail should never be used as a punishment.

Remember, bail ensures the accused will appear for trial and all pretrial required hearings.  A judge may include additional conditions such as no or limited contact with the alleged victim.  After all, the accused is seeking pre-conviction release meaning the accused has not been convicted of a crime; therefore, they should be considered innocent until proven guilty .  This presumption of innocence supports the accused in their appearance before the court.  When the accused appears without shackles, handcuffs, detention garments, and a disheveled look, the trier of fact (either jurors or judge) may inadvertently attach some level of guilt.  However, when the accused is dressed in a suit and tie {suit or dress}, having rested at home the night before the hearing, he {she} may be viewed more favorably. [13]

Another method for obtaining bail is via the option of cash bail.  Cash bail is defined as “[a] sum of money (as opposed to a surety bond) posted to secure a criminal defendant’s release from jail.” [14]   Research from the Prison Policy Initiative states almost half a million people are detained and awaiting trial in the United States.  “Many are jailed pretrial simply because they can’t afford money bail, others because a probation, parole, or ICE office has placed a hold” [15]  on their release.  The number of people in jail pretrial has nearly quadrupled since the 1980s.” [16]

In February 2021, Governor J.B. Pritzker signed a bill which places Illinois in the forefront of criminal justice as it as been in other areas such as juvenile justice.  Governor Pritzker signed “a landmark criminal justice reform package into law…, making the state among the first to eliminate the use of cash bail.” [17]

“True Commitment To Justice”: Illinois Becomes The First State To End Cash Bail [18]

Dubbed the Pretrial Fairness Act, the  Safety, Accountability, Fairness and Equity-Today (or SAFE-T) Act of 2021 was enacted to make changes to the Illinois’ criminal justice system.  Originally, the statute was scheduled to take effect on January 1, 2023.  “Nonviolent defendants who cannot pay for release will no longer remain incarcerated before trial, reversing a measure that opponents say criminalizes poverty.  Instead, judges must impose the least restrictive conditions necessary to ensure a defendant’s appearance in court.” [19]   In reality, the measure was a bipartisan, multiagency attempt to address criminal justice reform in Illinois.  Although litigation persisted from across the state, the historical implementation will occur.  “The Illinois Supreme Court … upheld the constitutionality of a state law ending cash bail, ordering implementation in mid-September.” [20]   The 5-2 ruling creates a path for those charged with minor, nonviolent offenses to be released in a pretrial basis.  On the other hand, the ruling is clear to note that those who are at risk for avoiding trial, have violent tendencies, and/or deemed a threat to the public, will remain detained as was the case prior to this act. [21]   Both opponents and supporters of this historic approach to cash bail weighed in from the bench.  ‘”The Illinois Constitution of 1970 does not mandate that monetary bail is the only means to ensure criminal defendants appear for trials or the only means to protect the public,” Justice Mary Jane Theis wrote in the ruling.” [22]   While those who oppose this act spoke from a textualist mode of interpretation, ‘Justices David Overstreet and Lisa Holder White both dissented from the ruling, calling the end to the state’s cash bail a “direct violation of the plain language of our constitution’s bill of rights.'” [23]

August 2014 photo shows a statue outside of the Illinois Supreme Court in Springfield, IL [24]

Yet another option for obtaining bail is the bail bond system.  Bail bond is defined as “money secured by a cash payment equal to some percentage of the bond’s full amount.” [25]   This option allows an accused to use a bail bondsperson to make an appropriate payment arrangement if the accused is unable to pay the full bail amount.  “In return for the defendant’s putting up a percentage of the total bond, usually 10 percent, the bondsperson will guarantee the remaining amount to the court should the defendant not be present for any court appearance.” [26]

Part II:  Right Against Excessive Fines also known as Excessive Fines Clause

nor excessive fines imposed,

Excessive Fines Photograph [27]

When discussing the Eighth Amendment, legal discussions almost automatically go to cruel and unusual punishment.  However, the second part of the amendment is almost always ignored.  Right against excessive fines imposed within this portion of the amendment points to common aspects of penalty for criminal offenses.  Judicial discretion is significant if the fines are not purely proscribed by law.  Recall we identified all of the sources of law as described in Chapter 2.  As mentioned each level of government – federal, state, and local, refer to the law differently.  Codes, statutes, and ordinances, respectfully, lists and provides penalty for criminal matters.  According to Fuller, criminal penalties include incarceration (prison), detention (jail), parole, death penalty, probation, fines, or any combination of those punishments. [28]

Criminal fines are included in codes, statutes, and ordinances and may be named solely or in conjunction with other penalties.  In general, fines are included in response to less serious offenses, non-violent crimes, which carry pecuniary or theft issues.  According to Black’s Law Dictionary, a fine is “[a] pecuniary criminal punishment or civil penalty payable to the public treasury.” [29]   Fines are typically seen in the criminal and civil statutes.  Fines may arise in a case for various reasons.

Within criminal fines, the U.S. Supreme Court discussed the Excessive Fines Clause in an unanimous and unusual decision.  In Timbs v. Indiana (2019), the court explored the central question of whether the Excessive Fines Clause of the Eighth Amendment would apply to the states under the Fourteenth Amendment.  The case involved the forfeiture of the accused’s Land Rover, after he was involved in a drug arrest where $1200 fines and costs were at issue.  Justice Kagan pointed out in the argument, the issue includes both the incorporation and scope of the Excessive Fines Clause.  The Court decided that the Excessive Fines Clause applies to the states, the question is how to determine what the fine should be and when is the fine excessive.  The Supreme Court of the United States vacated the Supreme Court of Indiana which allowed the forfeiture of the Land Rover and remanded the case for further proceedings consistent with the Eighth Amendment.

According to Black’s Law Dictionary, an excessive fine is defined as “[a] fine that is unreasonably high and disproportionate to the offense committed.” [30]

CONSTITUTIONAL CLIP

“The Excessive Fines Clause limits the government’s power to extract payment as punishment for an offense.  A fine is excessive when it is grossly disproportionate to the gravity of the offense that it was designed to punish United States v. Bajakajain (1998). [31]   Courts must also defer to the legislature regarding the appropriate range of punishment for an offense.” [32]   Therefore, judges are required to follow the intent of the law makers when sentencing defendants to fines.

Is the fine excessive?

• Whether the statute was designed to punish the accused;
• The amount of other approved penalties; and
• The harm caused by the accused. [33]

Part III:  Right Against Cruel and Unusual Punishments

nor cruel and unusual punishments inflicted.

Right against cruel and unusual punishment [37]

When discussing the Eighth Amendment, legal discussions reflexively go to cruel and unusual punishment.  Even more typical is how such discussions conclude that the Amendment refers only to death eligible cases.  According to Black’s Law Dictionary, cruel and unusual punishment is defined as “[p]unishment that is torturous, degrading, inhuman, grossly disproportionate to the crime in question, or otherwise shocking to the moral sense of the community.” [38]   The phrase “cruel and unusual” is ambiguous and sometimes convoluted as applied under the Eighth Amendment.  This phrase generates much division, dialogue, and disagreement.  In fact, most individuals who formulate an opinion on cruel and unusual punishment have not viewed or been closely involved in a case where it is applied to death penalty, capital punishment or death eligible cases.  So the question really becomes, does the court view all capital punishment cases as cruel and unusual as noted under the Eighth Amendment?

According to the Congressional Quarterly’s (1979), the court has not deemed the “…death penalty as invariably cruel and unusual.” [39]   The court has generally indicated that it would apply the amendment to prohibit punishments it found barbaric or disproportionate to the crime punished.” [40]   It is important that we ask the correct question in the death penalty dialogue.  According to the Equal Justice Initiative, “The question we need to ask about the death penalty in America is not whether someone deserves to die for a crime.  The question is whether we deserve to kill.” [41]   The question sparks more discussion than provide answers.  The authors of this textbook believe this is appropriate as many legal discussions end in more questions, than answers.

The Supreme Court of the United States noted that the Eighth Amendment’s Right Against “cruel and unusual punishment” applies to many categories of identified prisoner rights.  Prisoner rights on this topic, include, but are not limited to the following:

• “The right to humane facilities and conditions
• The right to be free from sexual crimes
• The right to be free from racial segregation
• The right to express condition complaints
• The right to assert their rights under the Americans with Disabilities Act
• The right to medical care and attention as needed
• The right to appropriate mental health care
• The right to a hearing if they are to be moved to a mental health facility.” [42]

These important rights are afforded to incarcerated individuals subject to the United States Constitution and the laws, codes, and acts of the United States of America.  These rights are guaranteed regardless of the prisoner’s alleged or confirmed crime, degree of heinousness, and/or the their sentence. [43]   Accordingly, this text will delve deeper into four categories associated with the Eighth Amendment’s “cruel and unusual punishment.”

Four Categories applying Cruel and Unusual Punishment

There are four categories to which the Supreme Court of the United States applies the third part of the Eighth Amendment.  The phrase “cruel and unusual punishment” as noted above began in a case for harsh and severe prisoner’s sentencing.  Therefore, this current application remains in alignment with the Supreme Court in Weems v. United States (1910).  The Court would extend this concept to three additional categories.

• Death Penalty
• Imprisonment
• Prisoner’s Rights as evidenced in the sections to follow.

a.  Death Penalty

At the beginning of the 20th century, the Supreme Court held in Weems v. United States (1910) that excessive punishments disproportionate to the crime may also be ‘cruel and unusual.’ [44]   Although the case does not involve the death penalty, the Court identified the perimeters for cruel and unusual punishment. 

“… {T}he Court held that punishment is cruel and unusual if it is grossly excessive for the crime.  Paul Weems, a government official in the Philippines, was convicted of falsifying pay records.  Under a territorial law inherited from the Spanish penal code, Weems was sentenced to cadeña temporal, a punishment involving fifteen years of hard labor in chains, permanent deprivation of political rights, and surveillance by the authorities for life.  Since the Philippine Bill of Rights was Congress’s extension to the Philippines of rights guaranteed by the Constitution, the meaning of cruel and unusual punishment was the same in both documents.” [45]  

On May 24, 2021, the U.S. Supreme Court denied a writ of certiorari from a Missouri death row inmate, Ernest Johnson. [46]   Recall from Chapter 2 how a case proceeds to the Supreme Court of the United States.  A writ of certiorari is “[a]n extraordinary writ issued by an appellate court, at its discretion, directing a lower court to deliver the record in the case for review … The U.S. Supreme Court uses certiorari to review most of the cases that it decides to hear.” [47]   It is this power which allowed the court to shape its destiny.  According to Wright, “[c}ertiorari control over the cases that come before the Court enables the Court to define its own institutional role.” [48]

States with the Death Penalty, Death Penalty Bans, and Death Penalty Moratoriums [49]

The application for a writ included Johnson’s request for a firing squad instead of the lethal injection which he believed could lead to an excruciating death. [50]   The defendant suffers from epilepsy as a result of a brain tumor as well as damage caused by surgery to remove the tumor.  He contends that he will experience excruciating seizures if Missouri executes him by lethal injection of the drug pentobarbital.  The court’s requirement for four justices to agree to consider the case (otherwise known as granting the writ of certiorari) was a 6-3 decision, with all of the Republican appointees in the majority and the Democratic appointees in the minority.  Justice Sonia Sotomayor wrote in the dissent, “Missouri is now free to execute [the inmate] in a manner that, at this stage of the litigation, we must assume will be akin to torture given his unique medical condition.” [51]

On May 14, 2021, Governor Henry McMaster of South Carolina signed Act 43 that forces South Carolina death row inmates to choose how to die: electric chair or firing squad. [52]   The law was passed to expedite executions, which had been halted since 2011 due to a shortage of the drugs needed to execute by lethal injection.  South Carolina Supreme Court placed a stay on Richard Moore as he was the first prisoner subject to execution under this law.  Subsequently, the choice of execution remains unresolved as the South Carolina Supreme Court heard arguments of constitutionality of this act.  

Further complicating this matter is how a death row prisoner may feel when he dies.  In June 2022, the Supreme Court of the United States decided a case in which a Georgia death row inmate requested death by firing squad as opposed to the state authorized death by lethal injection due to his “severely compromised” veins. [53]   Michael Nance was arrested, convicted, and sentenced to death in 2002 for shooting and killing a bystander after a bank robbery in 1993.  Subsequently, Nance has requested habeas review of this sentence.  The motion was denied.  Later, Nance brought a “suit under §1983 to enjoin Georgia from using lethal injection to carry out his execution.  Lethal injection is the only method of execution that Georgia law now authorizes.  Nance alleges that applying that method to him would create a substantial risk of severe pain {due to the condition of his collapsed veins.]” [54]   This suit was dismissed as untimely, while the 11th Circuit court rejected the suit based upon its categorization as a second and subsequent habeas petition.

Thus, Nance appealed the decision to the Supreme Court of the United States.  Writing for the court in a 5-4 decision, Justice Kagan stated “a death row inmate may attempt to show that a State’s planned method of execution, either on its face or as applied to him, violates the Eighth Amendment’s prohibition on ‘cruel and unusual’ punishment.”  As a result, the Supreme Court granted Nance the ability to pursue his lawsuit against the state of Georgia for death by firing squad.

Do you agree with the court?  In your opinion did the court get it right? Why or why not?

b.  Imprisonment

Empowering Prosecutors to Review Older Sentences [55]

The cruel and unusual punishment as penalty suggests evaluation of the Eighth Amendment must include proportionality of the crime as it relates to several key factors.  The Supreme Court of the United States emphasized the proportionality of punishment of any crime – felony or misdemeanor, as noted in Solem v. Helm (1983) . [56]    The Solem factors include

•         “ the severity of the offense,
• the harshness of the penalty,
• the sentences imposed on others within the same jurisdiction, and
• the sentences imposed on others in different jurisdictions.” [57]  

We must remember that the Supreme Court of the United States has the ability to overturn itself as previously stated in Chapter 2.  Thus, this case set the application for cruel and unusual punishment while inmates are in confinement or imprisonment .  According to Black’s Law Dictionary, imprisonment is defined as “[t] he act of confining a person, [especially] in a prison” [58] or “[a] building or complex where people are kept in long-term confinement as punishment for a crime, or in short-term detention while waiting to go to court as criminal defendants; [specifically}, a state or federal facility of confinement for convicted criminals, [especially] felons.” [59]   I n  Harmelin v. Michigan  (1991) , the court overturned their prohibition on disproportionality, but noted that the defendant’s life sentence without the possibility of parole is an unconstitutional extreme case which could violate the Eighth Amendment. [60]

According to Cornell Law, a later holding affirmed how the court regards the disproportionality standard affirming in Lockyer v. Andrade (2003), that proportionality is not the norm, but is only available in “exceedingly rare” and “extreme cases.” [61]

14-year-0ld Allen Miller from Miller v. Alabama [66]

In Just Mercy: A Story of Justice and Redemption, Attorney Bryan Stevenson recounts many first-hand accounts of how human nature engages in cruel and unusual punishment according to his laymen’s definitions as explored in many of his cases. [67]  Attorney Stevenson represented clients who alleged age as a mitigating factor for their reduction in sentencing based upon the disproportionality of the crime.  Juveniles have many issues and challenges as they “act impulsively, recklessly, and irresponsibly.” [68] Because of the juveniles’ diminished ability to critically think and behave, Stevenson argued in Graham v. Florida (2011) that “barred life-without-parole sentences for juveniles convicted of nonhomicide offenses” is cruel and unusual punishments. [69]

Attorney Stevenson and the Equal Justice Initiative invited the Supreme Court of the United States to further expand the application of age within the cruel and unusual punishment as it reviewed a combined case in Miller v. Alabama (2012). [70]   In Miller, the court held that mandatory life without the possibility of parole is unconstitutional amongst juveniles.  Unfortunately, the court did not summarily dismiss all life without the possibility of parole sentences noting that if they are part and parcel of a juveniles’ sentence, then it should occur few and far in between. [71]   “The Court did not ban all juvenile life-without-parole sentences, but held that requiring judges to consider ‘children’s diminished culpability, and heightened capacity for change’ should make such sentences “uncommon.” [72]    Therefore, it appears the Supreme Court of the United States is set forth the legal standard for determining if defendant’s Eighth Amendment rights amount to cruel and unusual punishment.

Although Miller v. Alabama was a pivotal juvenile decision, approximately one-quarter of states changed their stance on juvenile sentences.  These states “applied Miller retroactively to people already serving the banned sentence and granted them new sentencing hearings.” [73]   Furthermore, “a handful of states, including Louisiana, refused to [allow a new sentencing hearing].” [74]   In Montgomery v. Louisiana (6-3), the United States Supreme Court held Miller v. Alabama barred mandatory life without parole sentences for youth. The Court extended this holding retroactively.” [75]

This landmark decision paved the way for a remarkable occurrence. Mr. Joseph Ligon, 83, the oldest living juvenile lifer was released from prison after 68 years. [76]   At that time, Pennsylvania and Louisiana were two states that refused to apply Miller v. Alabama retroactively.  Pennsylvania’s refusal created an opportunity for one of the worst miscarriages of juvenile justice by the United States.  At 15, Joseph Ligon was convicted of two counts of first-degree murder after a drinking spree with three other youth ended tragically with two people dead.  The court sentenced Ligon to life without parole.  After Montgomery , the courts reset each of Mr. Ligon’s sentences to thirty-five years.  All sentences were to be served concurrently with an opportunity for parole.  When offered, Ligon refused parole on several occasions, citing instead that he wanted to leave without governmental conditions.  Ligon eventually brought suit which resulted in his release from prison without oversight. [77]   However, housing Ligon for almost 7 decades has its costs.  “According to an estimate by the Vera Institute of Justice, it cost the state of Pennsylvania nearly three million dollars to incarcerate Ligon for 68 years, and that’s without medical costs.” [78]

         Furthermore, a Mississippi petite jury convicted Brett Jones of murdering his grandfather when he was 15 years old.  Murder in Mississippi carried a mandatory sentence of life without parole.  Jones was sentenced to life without parole.   Jones’ conviction pre-dated both Miller v. Alabama (2012) and Montgomery v. Louisiana (2016), but he was granted a resentencing to ensure that the penalty addressed the Miller and Montgomery challenges.  Recall Miller held that the Eighth Amendment permits a life-without-parole sentence for a defendant who committed a homicide when he or she was under 18, but only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.” [79]   Recall  Montgomery  provides this standard retroactively.  In this case, Jones was resentenced to the same life without parole.  Jones requested review of this outcome from the SCOTUS.  The court upheld (6-3) the constitutionality of Jones’ life without parole sentence.  The court further noted that

“In the case of a defendant who committed homicide when he was under 18, Supreme Court precedent does require the sentencer to make a separate factual finding of permanent incorrigibility before sentencing the defendant to life without parole; a discretionary sentencing system is both constitutionally necessary and constitutionally sufficient.” [80]

This examination reminds the country of the chipping away at the progress made for juvenile offenders who receive a mandatory life without parole sentence under 18 years old.  These offenders should be sentenced, but must have a review which includes “a sentencer decid[ing] whether the juvenile offender before it is a child whose crimes reflect transient immaturity or is one of those rare children whose crimes reflect irreparable corruption” as noted in  Tatum v. Arizona . [81]   In her dissent, Justice Sotomayor joined by Justice Kagan and Justice Breyer, noted Jones was requesting such a determination.  Therefore, Justices Kavannaugh, Roberts, Barrett, Gorusch, and Alito joining in the opinion which upheld the life without parole sentence, but claimed to leave Miller and Montgomery undisturbed.  The justices attributed their opinions to the state’s sovereign ability to execute justice as they see fit. [82] Thus, the majority shifted federal judicial authority found in Miller and Montgomery back to the states for final determination.

d.  Prisoners’ Rights

Deplorable prison conditions [83]

There are many examples where cruel and unusual punishment may apply to prisoners housed in the prisons and jails.  These violations of prisoners’ rights include, but are not limited to:

• protection against beatings, Hudson v McMillian (1992) where the Supreme Court held an Eighth Amendment violation occurred when the guards maliciously and sadistically beat Hudson. [84]
• lack of adequate medical care, Estelle v.   Gamble  (1976) where a prison employees “deliberate indifference” to the “serious medical needs” of prisoners is an Eighth Amendment violation. [85]
• lack of care – resulting from overcrowding,  Brown v. Plata (2011) where the Court stated prisoners would suffer and potentially die without food sustenance and proper medical care. [86]
• sexual assault by inmates or guards, Bearchild v. Cobban (2020) where the Court held that “sexual conduct for the staff member’s own sexual gratification, or for the purpose of humiliating, degrading, or demeaning the prisoner” violates a prisoner’s right against cruel and unusual punishment. [87]
• sexual assault by inmates or guards – federal code, Civil Rights Actions – Convicted Person’s Claim of Sexual Assault which lists:

“Under the Eighth Amendment, a convicted prisoner has the right to be free from “cruel and unusual punishments.”  To prove the defendant deprived [name of applicable plaintiff] of this Eighth Amendment right, the plaintiff must establish the following elements by a preponderance of the evidence:

[Name of applicable defendant] acted under color of law;

[Name of applicable defendant] acted without penological justification; and

[Name of applicable defendant] [touched the prisoner in a sexual manner] [engaged in sexual conduct for the defendant’s own sexual gratification] [acted for the purpose of humiliating, degrading, or demeaning the prisoner].” [88]

Furthermore, the Eighth Amendment provides protections for the basic human needs of prisoners, as prisoners remain humans even, and especially when, in confinement.  In Farmer v. Brennan (1994) , prisoners were afforded “humane conditions of confinement,” to “ensure that inmates receive adequate food, clothing, shelter, and medical care.” [89]   Still, inmates suffer severe and despicable conditions while confined.

In Taylor v. Riojas (2020), the Supreme Court of the United States, in a per curiam opinion, noted that the petitioner could sue under the Eighth Amendment for confining him in two inhumane cells over the course of six days. [90]

Taylor was housed in the first cell which contained human feces everywhere including the floor, ceiling, windows, walls, and faucet creating a fear in Taylor.  These uninhabitable conditions affected Taylor’s physical and mental well-being.  As Taylor heightened his responses, this treatment only worsened.  Taylor was placed naked in a freezing cell with an inoperable drain.  Unfortunately, Taylor involuntarily relieved himself and was forced to sleep naked in his and other persons’ bodily waste.  The court deemed these conditions appropriate to provide a basis for a lawsuit. [91]   Specifically, the court noted that the correctional officers in this situation should have known that the prisoner’s cell conditions amounted to “cruel and unusual” punishment.  The court stated that when the officers were “[c]onfronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.” [92]   The court in Taylor set forth the legal standard of a reasonable officer, when evaluating whether an Eighth Amendment violation for prisoner’s right occurs.

Finally, the Supreme Court of the United States applied cruel and unusual punishment to women in confinement during childbirth.  Recall, the Eighth Amendment prevents officials in a jail or prison from acting with deliberate indifference to an inmate’s serious medical needs.  Obviously, the Court notes childbirth as a serious medical need.  Unfortunately, both federal and state violations persist with 173,000 women and girls incarcerated as of March 2023. These women are forced to endure incomprehensible pain and restraint during childbirth.  Essentially, these practices continue and impact about 5-10% of restrained women and girls who gave birth in many types of restraints. [93]   These restraints include, but are not limited to: “shackles, flex cuffs, soft restraints, hard metal handcuffs, a black box, Chubb cuffs, leg irons, belly chains, a security (tether) chain, or a convex shield.” [94]   Because prisoners’ rights are constitutionally protected under the Eighth Amendment cruel and unusual punishment clause, these claims are sometimes heavily litigated.

One such civil case filed in a federal court out in New Jersey addressed this issue for an incarcerated mom.  The prisoner was incarcerated on non-violent drug charges, but later died from an unrelated illness.  The case continued as the estate wanted the county to make improvements for pregnant prisoners.  Her loved ones detailed the deceased, incarcerated mom’s experience when they explained that the Middlesex County Jail officials “routinely shackled her wrists, ankles, and waist during prenatal visits, as she was transported to the hospital and during labor and childbirth.” [95]    The deceased inmate’s estate alleged the mental and physical challenges associated with being shackled during her pregnancy and throughout labor and delivery led Middlesex County representative to settle for $750,000. [96]

In most cases, the “cruel and unusual punishment” violations stem from prisoners’ serious medical needs up to and including death.  Prisoners, as humans, are entitled to human dignity.  What is human dignity?  According to Hopwood, “If you translated {human dignity}  into policy, it would mean that people in prison would be protected from physical, sexual, and emotional abuse and would be provided with adequate mental health and medical treatment.” [97]   The right against cruel and unusual punishment requires legislatures as well as the Supreme Court of the United States to weigh in and trace both the Framers’ intention and the current evolution for a holistic solution to this important legal issue including a protection of physical, sexual, emotional, mental and physical health.  Therefore, when thinking of Amendment VIII and its rights, remember to acknowledge all major parts of the amendment as opposed to the most infamous “cruel and unusual punishment” for a complete analysis.

Critical Reflections:

• Review the bail schedule listed in this chapter as well as this ruling issued by the Illinois Supreme Court. What is the reasoning used by the court to support their constitutional finding?
• Do people convicted of nonviolent crimes, such as drug offenses, belong in the same prison population as people convicted of violent crimes?  If not, what form of punishment would meet the standards of the Eighth Amendment?
• Review methods of execution here .  What are the legal methods of executions used in the United States?  Explain how a prisoner is able to challenge the method of their execution.  You must state both sides of the argument.
• Review the Marshall Project here .  What states have the ability to review old sentences?  When should prosecutors use their authority to review old sentences?  What factors help prosecutors determine if a sentence is cruel and unusual?
• Define the restraints such as shackles, flex cuffs, soft restraints, hard metal handcuffs, a black box, Chubb cuffs, leg irons, belly chains, a security (tether) chain, and a convex shield.  Do you believe these restraints during childbirth violates a mother’s Eighth Amendment right against “cruel and unusual” punishment?
• Case law in recent years such as Taylor v. Riojas (2020) has highlighted inhumane treatment of prisoners.  How does that inform how you will perform your career in law enforcement understanding detainees, defendants and even convicts have rights.
• Shestokas, D. J. (2016). Eighth Amendment: Banning cruel and unusual punishment. David J. Shestokas . https://www.shestokas.com/constitution-educational-series/eighth-amendment-banning-cruel-and-unusual-punishment/ ↵
• Britannica, T. Editors of Encyclopaedia (2020, March 19). Bill of Rights. Encyclopedia Britannica . https://www.britannica.com/topic/Bill-of-Rights-British-history ↵
• Levy, M. (2018, July 12). Eighth Amendment. Encyclopedia Britannica. https://www.britannica.com/topic/Eighth-Amendment ↵
• Bessler, J. (2019). A century in the making: The glorious revolution, the american revolution, and the origins of the U.S. Constitution’s eighth amendment. William & Mary Bill of Rights Journal, 27 , 989–1077. https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=2086&context=all_fac ↵
• Ibid. ↵
• Barnett, B. (2016b, September 21). “Excessive Bail Shall Not Be Required” | Bail is Not Intended to be Punishment . Fort Worth Criminal Defense, Personal Injury, and Family Law. https://www.bhwlawfirm.com/excessive-bail-punishment-texas/ ↵
• Bell v. Wolfish, 441 U.S. 520, 533 (1979) ↵
• Bail schedule . (n.d.). [Slide show]. NACDL. https://www.nacdl.org/getattachment/76e01bfc-9e62-4838-97cb-4db3f5bb21ee/bail-presentation.pdf ↵
• BAIL, Black's Law Dictionary (11th ed. 2019). ↵
• RECOGNIZANCE, Black's Law Dictionary (11th ed. 2019). ↵
• Etemad, N. (2019). To shackle or not to shackle? the effect of shackling on judicial decision-making. Review of Law and Social Justice, 28 (2). https://gould.usc.edu/students/journals/rlsj/issues/assets/docs/volume28/Spring2019/2-4-etemad.pdf ↵
• Rabuy, B., & Kopf, D. (2016, May 10). Detaining the poor: How money bail perpetuates an endless cycle of poverty and jail time [Press release] . Prison Policy Initiative. https://www.prisonpolicy.org/reports/incomejails.html ↵
• Evans, E., & Oceguera, R. (2021, February 23). Illinois criminal justice reform ends cash bail, changes felony murder rule. Injustice Watch. https://www.injusticewatch.org/news/2021/illinois-criminal-justice-reform-cash-bail-felony-murder/#:%7E:text=Harper)-,Illinois%20Gov.,the%20use%20of%20cash%20bail.&text=%E2%80%9CToday%20is%20a%20historic%20first,%2C%E2%80%9D%20said%20Illinois%20State%20Sen. ↵
• Roland martin unfiltered daily digital show . (n.d.). Retrieved August 3, 2023, from https://i.ytimg.com/vi/YLxZjokzlq0/maxresdefault.jpg ↵
• Evans & Oceguera, 2021. ↵
• Franklin, J. (2023, July 18). Illinois Supreme Court rules in favor of ending the state’s cash bail system. NPR . https://www.npr.org/2023/07/18/1188349005/illinois-ends-cash-bail-system-state-supreme-court ↵
• Ibid . ↵
• Perlman, S., /AP. (2023, July 18). Illinois supreme court rules in favor of ending the state’s cash bail system . NPR. https://www.npr.org/2023/07/18/1188349005/illinois-ends-cash-bail-system-state-supreme-court ↵
• BOND, Black's Law Dictionary (11th ed. 2019). ↵
• American Bar Association. (2019, September 9). How courts work . https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/bail/ ↵
• Eggert, B. (2019, February 22). Excessive fines and fees a thing of the past for local governments. IC System . https://www.icsystem.com/excessive-fines-and-fees-a-thing-of-the-past-for-local-governments/ ↵
• Fuller, J. (2018). Intro to Criminal Justice . Oxford University Press, Oxford (1st Edition). ↵
• FINE, Black's Law Dictionary (11th ed. 2019). ↵
• United States v. Bajakajain , 524 U.S. 321 (1998) ↵
• Carroll, P. (2020, April 5). Issues of excessive fines coming to a court near you. Trends In State Courts. https://www.ncsc.org/trends/monthly-trends-articles/2019/issues-of-excessive-fines-coming-to-a-court-near-you#:%7E:text=A%20claim%20based%20upon%20the,it%20was%20designed%20to%20punish. ↵
• LII / Legal Information Institute. (n.d.). Excessive fines . Retrieved March 25, 2021, from https://www.law.cornell.edu/wex/excessive_fines ↵
• FINE (2019). ↵
• PROPERTY, Black's Law Dictionary (11th ed. 2019). ↵
• What is the 8th Amendment? (n.d.). https://www.sportsmansbailbonds.com/blog/what-is-the-8th-amendment ↵
• CRUEL AND UNUSUAL PUNISHMENT, Black's Law Dictionary (11th ed. 2019). ↵
• Congressional Quarterly's Guide to the U.S. Supreme Court 575 (Elder Witt ed., 1979) ↵
• Children in adult prison. (2021, January 13). Equal Justice Initiative. https://eji.org/issues/children-in-prison/ ↵
• Findlaw.com’s team (Ed.). (2017, July 20). Rights of inmates. Findlaw.com. Retrieved July 17, 2023, from https://www.findlaw.com/civilrights/other-constitutional-rights/rights-of-inmates.html ↵
• Weems v. United States , 217 U.S. 349 (1910). ↵
• "Weems v. United States 217 U.S. 349 (1910)." Encyclopedia of the American Constitution . . .Retrieved June 30, 2023 from Encyclopedia.com: https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/weems-v-united-states-217-us-349-1910 ↵
• Johnson v. Precythe , 593 U.S. _________ (2021) ↵
• CERTIORARI, Black's Law Dictionary (11th ed. 2019). ↵
• Charles Alan Wright et al., Federal Practice and Procedure §4004, at 22 (2d ed. 1996). ↵
• ProCon.org. (2023, April 24). Death penalty states, bans and moratoriums - ProCon.org . Death Penalty. https://deathpenalty.procon.org/states-with-the-death-penalty-and-states-with-death-penalty-bans/ ↵
• Johnson v. Precythe , 2021. ↵
• Washington Post, “New law makes inmates choose electric chair or firing squad,” May 17, 2021 ↵
• Nance v. Ward , 597 US _ (2022). ↵
• Id . ↵
• Nadel, M., & Lee, C. (2022b, November 11). Prosecutors in these states can review sentences they deem extreme. few do. The Marshall Project . https://www.themarshallproject.org/2022/11/11/prosecutors-in-these-states-can-review-sentences-they-deem-extreme-few-do-it ↵
• Solem v. Helm, 463 U.S. 277 (1983). ↵
• IMPRISONMENT, Black's Law Dictionary (11th ed. 2019). ↵
• PRISON, Black's Law Dictionary (11th ed. 2019). ↵
• Harmelin v. Michigan , 501 U.S. 957 (1991) ↵
• Lockyer v. Andrade , 538 U.S. 63 (2003) ↵
• Alexander, M. (2020). The new jim crow (mass incarceration in the age of colorblindness - 10th anniversary edition) (1st ed.). NEW PRESS. ↵
• Sawyer, W., & Wagner, P. (2020, March 24). Mass incarceration: The whole pie 2020 [Press release] . https://www.prisonpolicy.org/reports/pie2020.html#slideshows/slideshow1/2 ↵
• Alexander, 2020. ↵
• Totenberg, N. (2012, March 20). Do juvenile killers deserve life behind bars? NPR . https://www.npr.org/2012/03/20/148538071/do-juvenile-killers-deserve-life-behind-bars ↵
• Stevenson, B. (2015). Just mercy: A story of justice and redemption (Reprint ed.) One World. ↵
• Children in adult prison . (2021, January 13). Equal Justice Initiative. https://eji.org/issues/children-in-prison/ ↵
• Stevenson , 2015. ↵
• Miller v. Alabama , 567 US _ (2012). ↵
• Id. ↵
• Miller v. Alabama , 2012. ↵
• Montgomery v. Louisana , 577 US _ (2016) ↵
• Commonwealth of Pennsylvania.v. Ligon , 1845 EDA 2017 (Pa. Super. Ct. 2019). ↵
• CBS News. (2021, March 16). After 68 years in prison, “juvenile lifer” Joe Ligon is free and hopes for a “better future.” CBS News . https://www.cbsnews.com/news/joe-ligon-longest-serving-juvenile-lifer/ ↵
• Jones v. Mississippi , 593 U.S. ___ (2021). ↵
• Tatum v. Arizona , 580 U. S. ___, ___ (2016) (SOTOMAYOR, J., concurring in decision to grant, vacate, and remand) (slip op., at 3) (internal quotation marks omitted). ↵
• Jones v. Mississippi, 2021. ↵
• How atrocious prisons conditions make us all less safe . (2021, August 23). Brennan Center for Justice. https://www.brennancenter.org/our-work/analysis-opinion/how-atrocious-prisons-conditions-make-us-all-less-safe ↵
• Hudson v McMillian , 503 U.S. 1 (1992) ↵
• Estelle v. Gamble , 429 U.S. 97 (1976). ↵
• Brown v. Plata , 131 S.Ct. 1910 (2011) ↵
• Bearchild v. Cobban , 947 F.3d 1130, 1144 (9th Cir. 2020) ↵
• 42 U.S.C. Sec. 1983, 9.26 ↵
• Farmer v. Brennan , 511 U.S. 825, 832 (1994). ↵
• Taylor v. Riojas , 592 U.S. _________ (2020). ↵
• American Bar Association. (n.d.). Cruel & unusual punishment - conversation starter . Retrieved October 22, 2020, from https://www.americanbar.org/groups/public_education/programs/constitution_day/conversation-starters/cruel-and-unusual-punishment/ ↵
• Taylor v. Riojas (2020). ↵
• Clarke, J., & Simon, R. (2013). Shackling and Separation: Motherhood in prison. AMA Journal of Ethics, 15 (9), 779–785. https://doi.org/10.1001/virtualmentor.2013.15.9.pfor2-1309 ↵
• Does shackling incarcerated women during childbirth violate the Eighth Amendment? (n.d.). https://www.americanbar.org/groups/litigation/committees/civil-rights/articles/2020/does-shackling-incarcerated-women-during-childbirth-violate-the-eighth-amendment/ ↵
• Joe Atmonavage, NJ Advance Media for NJ.com. (2022, September 13). N.J. county settles case for $750K after woman says she was shackled during labor. Nj . https://www.nj.com/news/2022/09/nj-county-settles-case-for-750k-after-woman-says-she-was-shackled-during-labor.html ↵
• Brennan City for Justice, 2021. ↵

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Eighth Amendment

Aug 06, 2014

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Eighth Amendment. American Political Institutions Fawn Gibson. Eighth Amendment. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Eighth Amendment.

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• criminal proceedings
• excessive fines clause
• supreme court
• eventual invalidation
• somewhat proportional

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Eighth Amendment American Political Institutions Fawn Gibson

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

Eighth Amendment • The amount of both bail and fines is generally set by the type of crime that a defendant is accused and judgments about the person’s character.

Eighth Amendment • the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government.

Eighth Amendment • Bail Reform Act of 1984: Congress authorize preventive detention in federal criminal proceedings. the denial of bail to an accused, unconvicted defendant because it is feared or it is found probable that if released s/he will be a danger to the community

Eighth Amendment • The concept of cruel and unusual punishment difficult to define; Because the notion of cruelty varies greatly from one age to the next.

Eighth Amendment • Trop v. Dulles (1958): Taking away a the citizenship of a natural born citizen was held as Cruel and Unusual.

Eighth Amendment • Does the Eighth Amendment contain a requirement that punishments be somewhat proportional to crimes?  • Harmelin v Michigan (1991), the Court upheld the sentence of life imprisonment for the first-time offense of possession of cocaine

Eighth Amendment • Having the Cruel and Unusual clause in the constitution led many to hope for the eventual invalidation of the death penalty

Eighth Amendment • The Supreme Court has exempted two key classes of people from the Death Penalty: • Those under the age of 15 • Those who are mentally retarded

Eighth Amendment • Having the death penalty makes the US condemned by other nations especially the EU.

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Watch CBS News

Supreme Court to weigh whether bans targeting homeless encampments run afoul of the Constitution

By Melissa Quinn

Updated on: April 18, 2024 / 2:52 PM EDT / CBS News

Washington — The Supreme Court on Monday will weigh arguments in a case  involving the homeless and bans on where they may sleep , the most significant one on the issue in decades.

The dispute involves whether laws that punish homeless people with civil citations for camping on public property are outside the bounds of the Constitution. Cities have been searching for ways to address homeless encampments that they say threaten public health and safety, as the nation confronts a  spike in homelessness  driven in part by high housing costs and the end of COVID aid programs. 

 A decision will shed light on how far city and state officials can go to address homeless encampments and is likely to reach beyond the borders of the Oregon city at the center of the dispute.

There were 256,000 unsheltered people in the U.S. on a given night in 2023, according to a December report from the Department of Housing and Urban Development. Homelessness rose 12% from 2022 to 2023, its highest level since tracking began in 2007, the report found , as housing prices soared and pandemic-era assistance programs expired.

"This is the most important Supreme Court case about homelessness in at least 40 years, and the results will be tremendous," said Jesse Rabinowitz, communications and campaign director at the National Homelessness Law Center, during a call with reporters. "This will either make it easier for cities to punish people for sleeping outside while failing to provide them shelter or housing, just like they did in Grants Pass, or it will push cities to fund actual solutions to homelessness."

The fight in Grants Pass

Grants Pass, a city in southern Oregon, has a population of nearly 40,000 people, and a decade ago, it ramped up enforcement of a series of ordinances that bar camping on public property or in city parks. A campsite is defined as "any place where bedding, sleeping bag, or other material used for bedding purposes, or any stove or fire is placed."

Violators are subject to fines of at least $295, but repeat offenders may be banned from a city park for 30 days. If a person violates that order by camping in a park, they are committing criminal trespass, punishable by up to 30 days in jail and a $1,250 fine.

The city said in court papers that it enforced the ordinances "with moderation," issuing more than 500 citations from 2013 to 2018. A policy from the Grants Pass Department of Public Safety states "homelessness is not a crime," and the department does "not use homelessness solely as a basis for detention or law enforcement action."

In 2018, three homeless people in Grants Pass sued the city on behalf of its homeless population, alleging its public sleeping and camping ordinances unconstitutionally punished them by violating the Eighth Amendment's prohibition on cruel and unusual punishment.

A federal district court in Oregon ruled for the challengers and barred Grants Pass from enforcing the public-camping ordinances during daytime hours without 24-hour notice, and at night entirely against the roughly 600 homeless people in the city. A divided three-judge panel of the U.S. Court of Appeals for the 9th Circuit upheld the district court's ruling as to the public-camping rules.

"The City of Grants Pass cannot, consistent with the Eighth Amendment, enforce its anti-camping ordinances against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements, or for sleeping in their car at night, when there is no other place in the city for them to go," Judge Roslyn Silver, who was on the 9th Circuit panel, wrote for the majority.

The full 9th Circuit declined to rehear the case over the dissent of 13 active judges and four senior judges. Judge Diarmuid O'Scannlain, joined by 14 judges, lambasted a ruling in an earlier, similar case involving a Boise law prohibiting public sleeping, blaming it for "paralyzing local communities and seizing policymaking authority that our federal system of government leaves to the democratic process."

In that case, the 9th Circuit ruled that if the number of homeless people in a city is greater than the number of available beds in shelters, a city cannot punish homeless people with criminal citations for sleeping in public.

Grants Pass officials urged the Supreme Court to reverse the 9th Circuit's decision, arguing that "modest" fines and short jail terms for camping on public property are not cruel and unusual punishments under the Eighth Amendment. 

They said that allowing it to stand prevents governments from "proactively addressing the serious social problems associated with the homelessness crisis," and threatens many other criminal prohibitions. 

"The homelessness crisis is a significant challenge for communities large and small throughout the nation. But '[n]ot every challenge we face is constitutional in character,'" lawyers for the city wrote in a filing. "And the solution is not to stretch the Eighth Amendment beyond its limits and place the federal courts in charge of this pressing social problem."

But Ed Johnson, director of litigation at the Oregon Law Center, who brought the suit on behalf of the homeless people in Grants Pass, said the word "camping" in the city's ordinances is misleading.

"The city has simply described the condition of living outside while trying not to die of hypothermia, and called it camping," he said in a call with reporters, noting that Grants Pass has no homeless shelters and a "severe" shortage of affordable housing.

He said the Eighth Amendment does not allow governments to fine, arrest and incarcerate those with no place else to go.

"Our case has always been about this narrow and fundamental issue that's currently before the Supreme Court," Johnson said. "Can a city make it illegal on every inch of city land, every minute of the day, for people to live outside when they have nowhere else to go? We believe the answer is no."

In court filings, Johnson and his co-counsel accused the city of punishing homeless people for sleeping or resting "anywhere on public property at any time with so much as a blanket to survive the cold" and said the laws make it "physically impossible for a homeless person who does not have access to shelter" to stay in Grants Pass without facing fines and jail time.

"The city's goal was to make its homeless residents so 'uncomfortable' that they would move to other jurisdictions," the lawyers wrote in a filing , referencing a comment by a city councilor, who said in 2013 that the point of Grants Pass' policies should be "to make it uncomfortable enough for [homeless people] in our city so they will want to move on down the road."

Johnson said Grants Pass is an outlier for the broad scope of its public camping ban, and he said at least four states have similar sweeping laws that prohibit homeless people from sleeping in public spaces. Florida Gov. Ron DeSantis signed a bill into law last month that bans homeless people from sleeping on sidewalks, in parks and other public places.

Efforts to address a homelessness crisis

The dispute has attracted input from a range of advocacy and law enforcement organizations, cities, states, members of Congress and the Biden administration.

The Justice Department told the Supreme Court in a filing that the 9th Circuit was right to find that the Eighth Amendment prohibits a local government from effectively criminalizing homelessness by prohibiting individuals who lack access to shelter from residing in that area. But it said applying that principle to a particular person requires a look at their circumstances, and the lower court was wrong to issue the broad injunctive relief that it did.

Those broad injunctions issued by U.S. district courts "may limit cities' ability to respond appropriately and humanely to encampments and other legitimate public health and safety concerns," Solicitor General Elizabeth Prelogar, who represents the government before the Supreme Court, said.

She urged the Supreme Court to wipe away the 9th Circuit's decision and send the case back for further proceedings.

A group of 24 state attorneys general said in a friend-of-the-court brief there has been an increase in public encampments in large and small cities, creating public health and safety issues, and said upholding the 9th Circuit's decision would impinge on state and local governments' ability to respond to homelessness.

But six Democrat-led states said the ordinances in Grants Pass criminalize homelessness and, if adopted more widely, "could render significant portions of the country off-limits for people who are homeless."

"Every human being needs to sleep, and a person who is involuntarily homeless by definition has nowhere to sleep lawfully other than on public property," they argued in a filing . "Punishing such a person for sleeping on public property is equivalent to punishing her simply for being involuntarily homeless — the very criminalization of status that this court has held the Eighth Amendment  proscribes."

Several major cities have asked the Supreme Court to allow them to address public health and safety concerns that arise from homeless encampments.

The city of Phoenix and the League of Arizona Cities and Towns said municipalities must have the authority to "arrest, cite, or forcibly remove individuals camping on public property when their actions jeopardize public safety."  In San Francisco, which is facing a homelessness crisis, city leaders told the Supreme Court that the 9th Circuit's decision has prevented it from enforcing six state and local laws that place limits on where and when homeless people can sleep and erect tents on public property. 

"The city has been unable to implement the considered policy decisions of its Mayor and local legislature; unable to enforce the will of San Francisco voters; unable to allow conscientious City employees to do their jobs; and unable to protect its public spaces," lawyers for the city said in their brief, filed in support of neither party.

The lower court decisions have "harmed both San Francisco's housed and unhoused populations by causing obstructed and inaccessible sidewalks, unsafe encampments, and fewer unhoused people to accept services," they continued.

A decision from the Supreme Court is expected by the end of June.

Melissa Quinn is a politics reporter for CBSNews.com. She has written for outlets including the Washington Examiner, Daily Signal and Alexandria Times. Melissa covers U.S. politics, with a focus on the Supreme Court and federal courts.

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