Eighth Amendment: Bail, Fines, and Punishment

1. Chapter 13

2.  The 8th
Amendment protects three rights:
 That excessive bail shall not be required
 That excessive fines shall not be imposed
 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.  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.  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
 Things change…

5.  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.  Also allows individuals to:
 Prepare a defense
 To continue earning income if employed
 Bail itself is not guaranteed in the
Constitution
 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
 8th
Amendment not incorporated under the 14th
Amendment to apply to the states
 But, most state Constitutions have similar provision

7.  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 (ROR/RPR)
 The court trusts them to appear in court
when required (Looks at background,
community ties, record, employment, etc.)

8.  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
 Eliminates presumption in favor of pretrial
release if prosecution can prove above…

9.  The Bail Reform Act of 1984
 Jackson v. Indiana (1972)
 Government may detain dangerous defendants
who may be incompetent to stand trial
 Addington v. Texas (1979)
 Government may detain mentally unstable
individuals who present a public danger
 United States v. Salerno (1987)
 Racketeering/conspiracy case where pretrial
detention under this act did not violate the 8th
Amendment
Protect community!!
Is this FAIR? People deemed “public dangers”
awaiting trial in prison

10.  The Bail Reform Act of 1984
 Stack v. Boyle (1951)
 Bail set at a figure higher than an amount reasonably
calculated to fulfill its purpose is excessive under the
8th
Amendment
 Again, 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.  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
 No government action…
 Because civil cases are between private parties
and the Constitution regulates the government

12.  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.  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 the government
 Forfeited assets must be used to further a
department’s crime-fighting mission

14.  Austin v. United States (1993)
 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
 In this case, $200 drug charge – seizure of $32,000
 This is the first decision on the limitation of the
government’s power to seize property connected with illegal
activity
 Another example: US v. Bajakajian (1998): $357,144 forfeiture is
grossly disproportionate to a Customs offense “worth” $10,000

15.  United States v. Ursery (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. Burden of proof on government that property is
subject to forfeiture is “preponderance of the
evidence”
2. Statute of Limitations is five years
3. Destruction of property to prevent seizure

16.  The final clause of the 8th
Amendment
 What is “cruel and unusual?”
 Depends on what society believes it to be!!!
 Consider different societies/cultures
 Trop v. Dulles (1958): Clause must draw its meaning from
“evolving standards of decency that mark the progress of a
maturing society”
 Coker v. Georgia (1977)
 Punishment is excessive and unconstitutional if it:
1. Makes no measureable contribution to acceptable goals of
punishment and hence is nothing more than the purposeless and
needless imposition of pain and suffering
2. Is grossly out of proportion to the severity of the crime

17.  The courts have used three inquiries in
assessing constitutionality of cruel and
unusual punishment:
1. Whether the punishment shocks the general
conscience of a civilized society
2. Whether the punishment is unnecessarily cruel
3. Whether the punishment goes beyond
legitimate penal aims

18.  The Supreme Court established three
criteria for proportionality analysis in Solem
v. Helm (1983) (making the punishment fit
the crime):
1. The gravity of the offense and the harshness
of the penalty
2. The sentences imposed on other criminals in
the same jurisdiction
3. The sentences imposed for the commission of
the same crime in other jurisdictions.

19. GENERAL RULE UNDER 8TH
AMENDMENT –
PUNISHMENTS MUST BE PROPORTIONAL OR
DIRECTLY RELATED TO THE CRIME COMMITTED
Ewing v. California (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
Graham v. FL (2910) – Life sentence without
possibility of parole for juvenile convicted of a non-homicide
offense violates the 8th
Am. (Need opportunity of possible
release!)

20.  The Supreme Court tackled the issue of
corporal punishment
 Causing bodily harm through physical force (i.e. –
whipping, flogging, or beating)
 Ingraham v. Wright (1977)
 Ingrahan, a junior high student, was hit more than 20
times with a paddle for disobeying a teacher
 SUPREME COURT held that 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.  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.  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.  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.  In Biblical times
 Stoned to death or crucified
 Greeks
 Poison from hemlock
 Romans
 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
 Guillotine

25.  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 little 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.  The five means of execution currently used
in the United States (See chart page 410 –
though realize some of this info has
changed!)
 Hanging
 Firing squad
 Electric chair
 Gas chamber
 Lethal injection
 Lethal injection is considered by some to be
the only politically correct method

27.  Furman v. Georgia (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;
Basically told the legislature to create better death
penalty laws
 NOTE: All 9 Justices wrote separate opinions trying to define
“cruel and unusual punishment”

28.  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. Determine innocence or guilt
2. Determine whether to seek the death penalty

29.  Gregg v. Georgia (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, but capital cases now require
bifurcated trials!
 Since ¾ of the states re-enacted death penalty
statutes, the “unusual” punishment was harder
for Court to grasp

30.  Base v. Rees (2008)
 Argued lethal injection was cruel and unusual
punishment (Pain during process/botching)
 7-2 decision – Court held that the three-drug
protocol did not violate the 8th
Amendment
 Method must present a substantial or objectively
intolerable risk of serious harm

31.  Do long delays in carrying out executions
constitute cruel and unusual punishment?
 Thompson v. McNeil (2009)
 The Supreme Court rejected an appeal that
claimed a 32 year imprisonment caused by his
appeals constituted cruel and unusual
punishment

32.  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

33.  Age
 Roper v. Simmons (2005)
 The 8th
and 14th
Amendments will not permit executing
anyone under 18 years of age for committing a crime
 Race
 McClesky v. Kemp (1987)
 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

34.  Mental Retardation
 Atkins v. Virginia (2002)
 The Supreme Court has prohibited executing the
mentally retarded
 The Mentally Ill
 The Supreme Court banned execution of the
insane
 Ford v. Wainwright (1986)
 An inmate that becomes mentally ill while in prison
can not be executed

35.  All but one state that has the death penalty
require automatic appellate review of death
sentences
 South Carolina allows a defendant to waiver
automatic review
 However, there is no automatic Supreme
Court review
 Because capital punishment is the ultimate
sanction a government can inflict, appeals
are certain and lengthy

36.  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

37.  Courts are continued to hear matters
pertaining to the death penalty and
specifically how potential jurors object or
favor the death penalty
 Can remove jurors on both sides with strong
beliefs
 Simmons v. South Carolina
 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

38.  Jones v. US (1999)
 Supreme Court said juries don’t need to be told
the consequences of a deadlock
 Ring v. Arizona (2002)
 Court ruled that capital punishment can be
imposed only by a jury or a judge following a
jury’s recommendation
 Not retroactive

39.  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
 DNA and “Innocence” projects impact
opinion

40.  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. Actions against individual prisoners
2. Institutional conditions

41.  Cases based on the 8th
Amendment for prisoners include:
 Overcrowding
 Solitary confinement
 Corporal punishment
 Physical abuse
 Use of force
 Food – NUTRALOAF!
 Second-hand smoke
 Treatment and rehabilitation, the right not to be treated
 Death penalty

42.  The Supreme Court has been called on to
determine whether conditions and actions
within correctional institutions constitute
cruel and unusual punishment
 Rhodes v. Chapman (1981)
 Double-celling and crowding do not necessarily
constitute cruel and unusual punishment
 Wilson v. Seiter (1991)
 Prisoners must prove prison conditions are
objectively cruel and unusual and show they
exist because of officials’ deliberate indifference

43.  Hope v. Pelzer (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