THE GREAT AWAKENING

The Great Awakening-In God We Trust

THE 8TH AMENDMENT

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

Background

The Eighth Amendment was adopted, as part of the Bill of Rights, in 1791. It is almost identical to a provision in the English Bill of Rights of 1689, in which Parliament declared, "as their ancestors in like cases have usually done...that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."[3]
 
The provision was largely inspired by the case in England of Titus Oates who, after the ascension of King James II in 1685, was tried for multiple acts of perjury that had led to executions of many people Oates had wrongly accused. Oates was sentenced to imprisonment, including an annual ordeal of being taken out for two days pillory plus one day of whipping while tied to a moving cart. The Oates case eventually became a topic of the U.S. Supreme Court's Eighth Amendment jurisprudence.[4] The punishment of Oates involved ordinary penalties collectively imposed in a barbaric, excessive and bizarre manner.[5] The reason why the judges in Oates' perjury case were not allowed to impose the death penalty (unlike in the cases of those whom Oates had falsely accused) may be because such a punishment would have deterred even honest witnesses from testifying in later cases.[6]
 
England's declaration against "cruel and unusual punishments" was approved by Parliament in February 1689, and was read to King William III and his wife Queen Mary II on the following day.[7] Members of Parliament then explained in August 1689 that "the Commons had a particular regard…when that Declaration was first made" to punishments like the one that had been inflicted by the King's Bench against Titus Oates.[7] Parliament then enacted the English Bill of Rights into law in December 1689.[7] Members of parliament characterized the punishment in the Oates case as not just "barbarous" and "inhuman" but also "extravagant" and "exorbitant".[8]
 
There is some scholarly dispute about whom the clause intended to limit.[9] In England, the "cruel and unusual punishments" clause may have been a limitation on the discretion of judges, requiring them to adhere to precedent. According to the great treatise of the 1760s by William Blackstone entitled Commentaries on the Laws of England:
 
[H]owever unlimited the power of the court may seem, it is far from being wholly arbitrary; but its discretion is regulated by law. For the bill of rights has particularly declared, that excessive fines ought not to be imposed, nor cruel and unusual punishments inflicted: (which had a retrospect to some unprecedented proceedings in the court of king's bench, in the reign of king James the second)....[10]
 
Virginia adopted this provision of the English Bill of Rights in the Virginia Declaration of Rights of 1776, and the Virginia convention that ratified the U.S. Constitution recommended in 1788 that this language also be included in the Constitution.[11]
 
Virginians such as George Mason and Patrick Henry wanted to ensure that this restriction would also be applied as a limitation on Congress. Mason warned that, otherwise, Congress may "inflict unusual and severe punishments."[12] Henry emphasized that Congress should not be allowed to depart from precedent
 
 
 
The rights under the Eighth Amendment largely apply to the punishment phase of the criminal justice system; but these rights can also apply whenever individuals are injured at the hands of government officials. This includes injuries that occur during a detention or an arrest before someone is even tried for a crime, or while in prison or some other form of government custody. Individuals have the right to seek damages and other remedies for violations of their Eighth Amendment rights by filing a civil rights case.
 
The following is a summary of the Eighth Amendment and criminal punishment, with an emphasis on the rights of the accused.
 
EXCESSIVE BAIL
In England, sheriffs originally determined whether to grant bail to criminal suspects. Since they tended to abuse their power, Parliament passed a statute in 1275 whereby bailable and non-bailable offenses were defined. The King's judges often subverted the provisions of the law. It was held that an individual may be held without bail upon the Sovereign's command. Eventually, the Petition of Right of 1628 argued that the King did not have such authority. Later, technicalities in the law were exploited to keep the accused imprisoned without bail even where the offenses were bailable; such loopholes were for the most part closed by the Habeas Corpus Act 1679. Thereafter, judges were compelled to set bail, but they often required impracticable amounts. Finally, the English Bill of Rights (1689) held that "excessive bail ought not to be required."
Cruel and Unusual Punishment
 
The Eighth Amendment is an important restraint on the government's ability to cause harm to individuals, whether economically through an excessive bail or fine, or physically. However, when it comes to cruel and unusual punishments, these words have not always been interpreted the same way in different eras. The Supreme Court has described cruel and unusual punishments as those which are "repugnant to the conscience of mankind," but as we know, what's considered "repugnant" can change over time.
 
For example, in 1972 the Supreme Court effectively placed a moratorium on the death penalty throughout the U.S. due to concerns with how it was being applied, only to have the penalty reinstated a few years later. There are also certain forms of the death penalty, such as the electric chair or gas chamber, which have been found to constitute cruel and unusual punishment, even though they'd been used for several years and weren't deemed repugnant at the time.
the Supreme Court commented that drawing and quartering, public dissection, burning alive, or disembowelment constituted cruel and unusual punishment.[
 
The Eighth Amendment, Criminal Punishment, and Deliberate Indifference
 
In addition to physical injuries, there are also situations when inaction through the "deliberate indifference" of a government official can violate the Eighth Amendment. The failure to provide needed medical care to an individual in custody, for example, can constitute cruel and unusual punishment where it results in harm to that person. In these types of cases, usually brought by prisoners, a claim would need to show that:
 
  • The offender was aware of some danger or risk of harm;
  • The offender chose not to take any steps to remedy the problem; and
  • This resulted in harm to the plaintiff.
As you can see, although a relatively short sentence, the Eighth Amendment packs a broad range of very important protections for individuals whenever they're interacting with government officials.
 
The Eighth Amendment: Text
 
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
 
 
Eighth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that limits the sanctions that may be imposed by the criminal justice system on those accused or convicted of criminal behaviour. It contains three clauses, which limit the amount of bail associated with a criminal infraction, the fines that may be imposed, and also the punishments that may be inflicted. The Eighth Amendment comes almost verbatim from the English Bill of Rights (1689).
 
 
 
 
Be Well, Be Blessed, Be Free and Be the Change you wish to see,
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