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  2. 2. Introduction  The 8th Amendment protects three rights:   That excessive fines shall not be imposed   That excessive bail shall not be required That cruel and unusual punishment shall not be inflicted This Amendment has a lot of controversy because of interpretations about whether the death penalty is cruel and unusual
  3. 3. A Brief History of Punishment   Massachusetts Body of Liberties (1641) enacted a right to bail and prohibited cruel and unusual inhumane punishment Massachusetts Bay Colony sought to eliminate English punishments as cutting off hands and burning at the stake
  4. 4. A Brief History of Punishment    The Body of Liberties allowed the death penalty for religious offenses such as blasphemy but not for burglary and robbery Society itself determined and continues to decide what is reasonable and unreasonable punishment Our criminal justice system is responsive, not reactive, to social changes
  5. 5. Bail   Money or property pledged by a defendant for pretrial release from custody that would be forfeited should the defendant fail to appear at subsequent court proceedings Bail serves two purposes: 1. Helps to assure the appearance of the accused at court proceedings 2. It maintains the presumption of innocence by allowing individuals not yet convicted of a crime to avoid continued incarceration
  6. 6. Bail  Also allows individuals to:    Prepare a defense To continue earning income if employed Bail itself is not guaranteed  Only excessive bail is prohibited which is not clearly defined  Bail may be denied in capital cases and when the accused has threatened possible trial witnesses
  7. 7. The Evolution of Legislation and Case Law on Bail  The Bail Reform Act of 1966  Helped indigent defendants who were unable to post bail  Ensured that poor defendants would not remain in jail only because they could not afford bail  Required judges to consider other ways for defendants to guarantee their return to trial  The primary bail condition was release on recognizance  The court trusts them to appear in court when required
  8. 8. The Evolution of Legislation and Case Law on Bail  The Bail Reform Act of 1984   Granted judicial authority to include specific conditions of release for the community's safety Allows judges to consider the potential criminal conduct of those accused of serious offenses and deny bail on those grounds  Preventive Detention
  9. 9. The Evolution of Legislation and Case Law on Bail  The Bail Reform Act of 1984  Ja c ks o n v. I ia na (1972) nd  Government may detain dangerous defendants who may be incompetent to stand trial  A d ing to n v. Te x a s (1979) d  Government may detain mentally unstable individuals who present a public danger  Unite d Sta te s v . Sa le rno (1987)  Pretrial detention under this act did not violate the 8th Amendment
  10. 10. The Evolution of Legislation and Case Law on Bail  The Bail Reform Act of 1984  Sta c k v. Bo y le (1951)  Bail set at a figure higher than an amount reasonably calculated to fulfill its purpose is excessive under the 8th Amendment  The excessive bail prohibition has never been formally incorporated to apply to the states under the 14th Amendment, allowing states to deal with it through their constitutions, legislation and case law
  11. 11. Fines   The prohibition against excessive fines has not been incorporated, so it does not apply to the states Excessive fine prohibition does not apply in the civil area  Because civil cases are between private parties and the Constitution regulates the government
  12. 12. Fines  In civil lawsuits, the plaintiff seeks monetary damages from the defendant to right an alleged wrong  Compensatory damages- reimbursement to the plaintiff for actual harm done  medical  expenses or lost business Punitive damages- fines above and beyond actual economic loss to punish the defendant in a civil trial  Additional payments to the wrongdoer and a warning to others not to engage in similar conduct
  13. 13. Asset Forfeiture and the Prohibition against Excessive Fines  Asset Forfeiture    The seizure by the government, without compensation, of money and property connected with illegal activity Property connected with illegal activity may be forfeited when used as a conveyance to transport illicit drugs Real estate used in association with a crime and money or other negotiable instruments obtained through criminal activity also can be seized and is considered a civil sanction by
  14. 14. Asset Forfeiture and the Prohibition against Excessive Fines  A tin v. Unite d Sta te s (1993) us  The Supreme Court ruled that the 8th Amendment prohibition against excessive fines applies to civil forfeiture proceedings against property connected to drug trafficking  The amount seized must bear some relation to the value of the illegal enterprise under the 8th Amendment  This is the first decision on the limitation of the government’s power to seize property connected with illegal activity
  15. 15. Asset Forfeiture and the Prohibition against Excessive Fines  Unite d Sta te s v. Urs e ry (1996)   Forfeiture is not double jeopardy because it is considered a civil sanction rather than an additional criminal action Civil Asset Forfeiture Reform Act (2000)  Key changes: 1. 2. 3. Burden of proof is “preponderance of the evidence” Statute of Limitations is five years Destruction of property to prevent seizure
  16. 16. Cruel and Unusual Punishment  The final clause of the 8th Amendment  What is “cruel and unusual?”   Depends on what society believes it to be Co ke r v. G e o rg ia (1977)  Punishment is excessive and unconstitutional if it: 1. 2. Makes no measureable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering Is grossly out of proportion to the severity of the
  17. 17. Cruel and Unusual Punishment  The courts have used three inquiries in assessing constitutionality of cruel and unusual punishment: 1. 2. 3. Whether the punishment shocks the general conscience of a civilized society Whether the punishment is unnecessarily cruel Whether the punishment goes beyond legitimate penal aims
  18. 18. Cruel and Unusual Punishment  The Supreme Court has established three criteria for proportionality analysis (making the punishment fit the crime): 1. 2. 3. The gravity of the offense and the harshness of the penalty The sentences imposed on other criminals in the same jurisdiction The sentences imposed for the commission of the same crime in other jurisdictions.
  19. 19. Cruel and Unusual Punishment  Ewing v. Ca lifo rnia (2003)   The court considered whether a sentence of 25 years to life imprisonment for felony theft under “three strikes” sentencing was cruel and unusual 5 to 4 vote held that California’s three strikes law did not violate the 8th Amendment
  20. 20. Cruel and Unusual Punishment  The Supreme Court tackled the issue of corporal punishment   Causing bodily harm through physical force (i.e. – whipping, flogging, or beating) I ra ha m v. Wrig ht (1977) ng   The state may impose such corporal punishment as is necessary for the proper education of the child for the maintenance of group discipline This ruling is controversial
  21. 21. Punishment Options  The American criminal justice systems continues to works with different ways to meet the goals of punishment    Prison, parole, probation, intermediate sentencing, fines, restitution, capital punishment Not all of these options meet the expectations of the public or the politicians The real challenge is to inquire whether existing means work and, when they do not, what might?
  22. 22. Physical Forms of Punishment  Modern technology presents several possible treatments for criminals:   Antabuse & Depo-Provera Other forms of physical bodily punishment for criminal have disappeared  The death penalty remains in use and is controversial
  23. 23. Capital Punishment    The death penalty dates back centuries Society has always struggled with balancing societal needs with socially acceptable means of punishment History records many methods of execution:  Buried alive, thrown to wild animals, drawn and quartered, boiled in oil, burned, stoned, drowned, impaled, crucified, pressed to death, smothered, stretched on a rack, disemboweled, beheaded, hanged or shot
  24. 24. Capital Punishment  In Biblical times   Greeks   Poison from hemlock Romans   Stoned to death or crucified Beheading, clubbing, strangling, drawing and quartering or feeding to lions Dark Ages  Submerged in water or boiled in oil, crushed by huge boulder or forced to do battle with skilled swordsman   It was presumed that the innocent would survive and the guilt would be killed France 
  25. 25. Capital Punishment   Until the middle of the 19th century, the death penalty was the automatic sentence for a convicted murderer 20th century:    Jurors were given more discretion in sentencing Given no guidance by state law in choosing between life and death sentences Jurors had total discretion in this decision, which could not be reviewed on appeal
  26. 26. Means of Execution  The five means of execution currently used in the United States   Firing squad  Electric chair  Gas chamber   Hanging Lethal injection Lethal injection is considered by some to be the only politically correct method
  27. 27. Is Capital Punishment Cruel and Unusual?  Furm a n v. G e o rg ia (1972)  Landmark case in which Supreme Court called for a ban on the death penalty in Georgia  Ruled its law as it stood was capricious and hence, cruel and unusual punishment  The Court ruled that the states had to give judges and juries more guidance in capital sentencing to prevent discretionary use of the death penalty  It held that Georgia’s death penalty was invalid
  28. 28. Is Capital Punishment Cruel and Unusual?   Due to the Furman case, executions were suspended across the country The federal government passed a new death penalty law instituting a new two-step process (bifurcated trial): 1. 2. Determine innocence or guilt Determine whether to seek the death penalty
  29. 29. Is Capital Punishment Cruel and Unusual?  G re g g v. G e o rg ia (1976)  The Supreme Court reinstated the Georgia death penalty by sustaining its revised death penalty law  The death penalty itself is not cruel and unusual punishment  A capital case now requires a bifurcated trial
  30. 30. Lengthy Delays in Execution as Cruel and Unusual   Do long delays in carrying out executions constitute cruel and unusual punishment? Tho m p s o n v. M N il (2009) c e  The Supreme Court rejected an appeal that claimed a 32 year imprisonment caused by his appeals constituted cruel and unusual punishment
  31. 31. Who Can Be Executed?     As a general rule the Supreme Court has upheld the death penalty for murder but not other crimes The punishment must be related to the crime It only makes sense that the death penalty is only applied to a case where a life has been taken The death penalty should only be applied in the most heinous crimes
  32. 32. Who Can Be Executed?  Age  Ro p e r v. Sim m o ns (2005)  The 8th and 14th Amendments will not permit executing anyone under 18 years of age for committing a crime  Race  M Cle s ky v. Ke m p (1987) c  Defendant presented a study contending that capital punishment in Georgia was filled with racial discrimination  Court rule that his study was valid, however, he had not proved the sentence was the result of racial discrimination
  33. 33. Who Can Be Executed?  Mental Retardation  A tkins v. Virg inia (2002)  The Supreme Court has prohibited executing the mentally retarded  The Mentally Ill   The Supreme Court banned execution of the insane Fo rd v. Wa inwrig ht (1986)  An inmate that becomes mentally ill while in prison can not be executed
  34. 34. Appeals   All but one state that has the death penalty require automatic appellate review of death sentences Because capital punishment is the ultimate sanction a government can inflict, appeals are certain and lengthy
  35. 35. Costs of the Death Penalty     Death penalty cases are very expensive One report showed California spending $138 million per year on the death penalty The annual costs of incarcerating death row inmates is significantly higher than those spent to incarcerate a prisoner serving a life sentence States are debating the cost effectiveness of maintaining the death penalty
  36. 36. Juries and Capital Punishment   Courts are continued to hear matters pertaining to the death penalty and specifically how potential jurors object or favor the death penalty Sim m o ns v. So uth Ca ro lina  Court held that if the prosecution contends a defendant should be put to death because he is too dangerous to ever return to society, without informing the jury of the option of a sentence of life without parole, this action could be considered a denial of due process
  37. 37. Juries and Capital Punishment  Ring v. A o na (2002) riz  Court ruled that capital punishment can be imposed only by a jury or a judge following a jury’s recommendation
  38. 38. Continuing Controversy     The death penalty will be an issue for years to come With strong advocates and opponents, the core of the issue will be the question of values The Gallup Poll results indicate that the public still supports the death penalty Many researchers reject the notion that the death penalty acts as a deterrent to murder
  39. 39. 8th Amendment and Corrections   Due process and equal protection issues are significant concerns in corrections because violations of these rights are unconstitutional 8th Amendment rights are divides into two categories: 1. 2. Actions against individual prisoners Institutional conditions
  40. 40. 8th Amendment and Corrections  Cases based on the 8th Amendment for prisoners include:  Overcrowding  Solitary confinement  Corporal punishment  Physical abuse  Use of force  Treatment and rehabilitation, the right not to be treated  Death penalty
  41. 41. Prisoner Treatment and the 8th Amendment   The Supreme Court has been called on to determine whether conditions and actions within correctional institutions constitute cruel and unusual punishment Rho d e s v. Cha p m a n (1981)   Double-celling and crowding do not necessarily constitute cruel and unusual punishment Wils o n v. Se ite r (1991)  Prisoners must prove prison conditions are objectively cruel and unusual and show they exist because of officials’ deliberate indifference
  42. 42. Prisoner Treatment and the 8th Amendment  Ho p e v. Pe lz e r (2002)   The conditions must be shown to involve wanton and unnecessary infliction of pain and to be grossly disproportionate to the severity of the crime warranting imprisonment Handcuffing an inmate to a post as punishment for bad behavior was found to be cruel and unusual punishment