The Eighth Amendment and Criminal Punishment

Generally, a punishment is cruel and unusual if it violates basic human dignity or is inhumane. There is no exhaustive list specifying which specific punishments are cruel and unusual.

The rights granted by the Eighth Amendment to the United States Constitution primarily apply to the punishment phase of the criminal justice system. These rights also apply whenever individuals are injured or punished by government officials. Individuals can 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, emphasizing the rights of the accused.

The Text of the Eighth Amendment

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

The Eighth Amendment Explained

The Eighth Amendment is part of the U.S. Constitution's Bill of Rights. It is an essential restraint on the government's ability to cause harm to individuals. It protects against the infliction of certain physical and economic punishments.

Originally, the Eighth Amendment only applied to the federal government and federal court cases. However, the Fourteenth Amendment extended it to the states.

Excessive Bail

As the text of the Eighth Amendment states, the government cannot require excessive bail from criminal defendants. The U.S. Supreme Court has determined that courts cannot set bail that is excessive to the alleged wrongdoing.

Bail refers to when detention centers, such as jails, temporarily release prisoners in exchange for security. The accused often posts bail by paying the court a designated amount or taking a court-ordered action.

For example, a person may have to surrender any firearms they possess. The government may release the defendant from detention in exchange for their security and a promise to appear at a later hearing. The court can temporarily hold their passport if flight to another country is a concern.

But a person does not have an absolute right to bail. For example, if the defendant is accused of a serious crime or the court determines they present a significant threat to the community, it may refuse to set bail. The Bail Reform Act of 1984 sets out other circumstances where courts may deny bail, such as when the defendant faces a possible life sentence.

The Eighth Amendment protects against the court setting disproportionate bail. The judge or magistrate sets the defendant's bail. Factors the judge considers when determining proportionality include the following, among others:

  • The nature and seriousness of the crime
  • The amount of danger the defendant poses to society
  • The weight of the evidence
  • Whether the defendant is a flight risk

Based on its analysis, the court will typically set a bail proportionate to the alleged crimes. Specifically, the court cannot set bail disproportionate to — or more excessive than — necessary to prevent the wrongdoing.

For example, a bail amount of $1 million for jaywalking would undoubtedly be unconstitutional. However, this amount of bail for first-degree murder may be constitutional.

Excessive Fines

The Eighth Amendment prohibits the government's imposition of excessive fines. The excessive fines clause is similar to the prohibition against excessive bail. The court must balance the fine versus the nature of the offense. This protection applies to both civil and criminal cases.

In the criminal law context, courts consider the following when determining fines:

  • The defendant's financial situation
  • The amount of other statutory fines
  • The fine's effect on the defendant's finances

For more information about excessive bail and fines, visit FindLaw's Criminal Rights section.

Cruel and Unusual Punishment

The Eight Amendment's cruel and unusual punishment clause protects criminal defendants against the government's imposition of cruel and unusual punishments. The Amendment's text does not explain what cruel and unusual means, though.

Instead, the Supreme Court has noted that what constitutes such punishment evolves. In a 1958 case, Chief Justice Earl Warren wrote that the protection "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

The Supreme Court's interpretation of cruel and unusual punishment has changed over the years. In 2010, the Supreme Court described cruel and unusual punishments as those that are "repugnant to the conscience of mankind." Of course, what society considers repugnant changes over time.

The Death Penalty

A prominent example of society's changing view of cruel and unusual punishment is the death penalty. The death penalty, perhaps the most ancient form of punishment, is a divisive topic in American society. Proponents of capital punishment argue it is the ultimate deterrence tactic. Critics say that it is not only inhumane but also brutalizes civilized society.

Unsurprisingly, the Supreme Court has wrestled with the death penalty many times. For example, in 1972, the Supreme Court effectively banned it, although only temporarily, in Furman v. Georgia. The ban lasted approximately four years.

In 1976, the Supreme Court decided the Gregg v. Georgia case, which lifted the death penalty ban. In Gregg, the Supreme Court set out the requirements for states that wished to reinstate capital punishment.

Since Gregg, the Supreme Court has further narrowed the government's use of the death penalty. Consider the following court decisions:

  • Coker v. Georgia (1977): The court determined that instituting the death penalty as punishment for a convicted rapist was cruel and unusual punishment.
  • Atkins v. Virginia (2002): The court determined that the government cannot impose the death sentence on a person with mental disabilities. The court reasoned that executing such a defendant does not advance the death penalty's purposes, and they are less culpable than the average criminal.
  • Roper v. Simmons (2005): The court held that courts cannot sentence those who were juveniles at the time of the crime to death.

As of 2023, 27 states allow the death penalty. The number of death row inmates executed since 2000 has generally decreased. In 2000, the government executed 85 death row inmates. In 2022, however, the government executed 18 death row inmates, up from 11 in 2021.

Each state that allows the death penalty enables the use of lethal injections. State laws vary as to different methods of execution. For example, five states still use the electric chair, and others use gas chambers. California, on the other hand, found that gas chambers constituted cruel and unusual punishment. Therefore, capital punishment varies by state.

The Eighth Amendment and Deliberate Indifference

In addition to physical injuries, there are also situations where government inaction can violate the Eighth Amendment. Such inaction is also known as "deliberate indifference." For example, failing to provide needed medical care to an individual in custody can constitute cruel and unusual punishment.

To bring a civil rights claim in such an instance, the prisoner must show the following:

  • The offender was aware of some danger or risk of harm
  • The offender chose not to take any steps to remedy the problem;
  • This resulted in harm to the plaintiff

Although it is a short sentence, the Eighth Amendment packs many important individual protections.

The Eighth Amendment and Criminal Punishment: Annotations

The "annotations" section details a given legal code's various rights, protections, exceptions, and history. The following annotations provide more clarity regarding the Eighth Amendment:

For more information about your constitutional rights, browse FindLaw's Constitutional Law section.

Learn More About Your Eighth Amendment Rights: Talk to an Attorney

Sentencing and punishment in the context of criminal law are complicated. If you have questions about your constitutional rights, especially regarding the Eighth Amendment and criminal punishment, consider contacting a criminal defense attorney. An experienced attorney can provide important legal advice and information regarding the following:

If the government criminally charges you, it is vital to contact an attorney. If you believe the government has violated your Eighth Amendment rights, contact a civil rights attorney or criminal defense attorney today.

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