Amendment VIII – Excess Bail or Fines, Cruel and Unusual Punishment (1791)

The Eighth amendment of the US Constitution was adopted in 1791 as part of the US Bill of Rights.  The amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[i] The Eighth Amendment has three clauses, namely the excessive bail clause; excessive fines clause; and cruel and unusual punishment clause.

Excessive Bail clause: The excessive bail clause revolves around the principle that “an accused is presumed innocent until found guilty.”  Bail is an amount the courts may require an accused to furnish as security to ensure the accused person’s appearance for trial.  The bail amount can be money, property or a bond.  Although, the bail amount is decided by the court, the excessive bail clause requires reasonableness in fixing the amount.  If the accused is able to furnish the bail amount to the court, then the accused will be set free on bail until trial.  During the bail period the accused can go back into normal society.  The bail system ensures that the accused will come back to court for trial.  Courts consider the following in determining bail: 1) the severity of the offence, 2) levels of evidence proffered against the accused, 3) family and employment ties and commitments of the accused, 4) if the accused is able to furnish the bond amount, and 5) if there is any possibility for the accused to flee.

Using the standards above, courts set a reasonable bail amount however, the bail amount should not be too low so that the accused is enticed into forfeiting the bail amount and fleeing.  If a court finds that the accused, if released, will likely cause danger to the community a court may deny bail altogether. 

If the accused appears for future court proceedings the accused will get back his/her bail money upon conclusion of the court proceedings.  If the accused fails to appear he/she forfeits the bail amount.

Excessive fines clause: Unlike the excessive bail clause, courts are given greater freedom under excessive fines clause.  Imposing fines is considered a discretionary power of the judge, and the decision of a lower court judge on fines will be over turned if that judge is found to have abused his/her discretion in deciding setting fines.  Thus, abuse of discretion is the standard used in checking if fines are imposed excessively, arbitrarily or capriciously.

Cruel and unusual punishment: According to this clause, state and federal governments shall not sentence an accused to cruel and unusual punishments, however heinous the criminal act may be.  All punishments should be directly proportionate to the offense committed.  Appellate courts have authority to overturn any disproportionate punishment.  Although, there is no definition provided for the term ‘cruel and unusual punishment’ some examples have been developed through case law, namely: castration, burning at the stake, quartering, crucifixion, breaking on the wheel, and other punishments that involve a lingering death.  Additionally, a state statute which imposed compulsory sterilization of criminals and the feeble-minded in order to prevent them from reproducing was invalidated due to it being cruel and unusual.

A test entitled the ‘Trop standard’ was evolved in a case called Trop v. Dulles.[ii]  Under the Trop standard the Supreme Court tests whether a punishment is offensive to society rather than just being shocking and outrageous.  Under the Trop test, a survey is conducted of all state legislation to find out if a particular type of legislation is authorized by most of the states.  If most of the states have recognized the legislation then the court will approve the type of punishment prescribed by the legislation as it is not against the evolving standards of decency. 

Another test used by the Supreme Court in deciding the constitutionality of a punishment is called the ‘Originalist approach’.  Under this test the Supreme Court invalidates all the punishments which seem to have not been approved by the framers of the Eighth Amendment.  Accordingly a particular punishment is considered cruel and unusual, if that punishment was prohibited during the time the Eight Amendment was ratified.

[i] USCS Const. Amend. 8 

[ii] Trop v. Dulles, 356 U.S. 86 (U.S. 1958)


Inside Amendment VIII – Excess Bail or Fines, Cruel and Unusual Punishment (1791)