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Bill of Rights: Eighth

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

Common Interpretation of the Eighth Amendment

The Eighth Amendment to the United States Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This amendment prohibits the federal government from imposing unduly harsh penalties on criminal defendants, either as the price for obtaining pretrial release or as punishment for crime after conviction.

The Cruel and Unusual Punishments Clause is the most important and controversial part of the Eighth Amendment.  In some ways, the Clause is shrouded in mystery. What does it mean for a punishment to be “cruel and unusual”? How do we measure a punishment’s cruelty? And if a punishment is cruel, why should we care whether it is “unusual”?

We do know some things about the history of the phrase “cruel and unusual punishments.” In 1689 – a full century before the ratification of the United States Constitution – England adopted a Bill of Rights that prohibited “cruell and unusuall punishments.” In 1776, George Mason included a prohibition of cruel and unusual punishments in the Declaration of Rights he drafted for the Commonwealth of Virginia. In 1791, this same prohibition became the central component of the Eighth Amendment to the United States Constitution.

When the United States Constitution was first ratified by the states, it did not contain a Bill of Rights, and it did not prohibit cruel and unusual punishments. These protections were not added until after the Constitution was ratified. The debates that occurred while the states were deciding whether to ratify the Constitution shed some light on the meaning of the Cruel and Unusual Punishments Clause, because they show why many people thought this Clause was needed. Continue reading from Constitution Center

What's Considered Cruel and Unusual Today?

In 1804, Aaron Burr, the sitting Vice President of the United States, shot and killed Alexander Hamilton in a duel that took place in New Jersey. Burr ran for governor of New York and Hamilton – widely considered the most influential “founding father” of the United States – opposed his candidacy, making public remarks that Burr found insulting. Burr lost the election, and he blamed Hamilton, so he challenged Hamilton to a duel. Dueling had a long history in the United States; in fact, Hamilton’s son had died in a duel a few years earlier. Dueling continued in the United States until the mid-19th century. Burr was never prosecuted for the murder of Hamilton. After Hamilton’s death, many religious leaders began arguing for the abolition of dueling the way some people now seek the abolition of the death penalty.

Today, dueling is deemed unconscionable. No American leader could credibly support dueling as an acceptable method for resolving conflicts. It is hard for us now to understand how the Framers of our Constitution could embrace such a misguided and barbaric practice. It is unfathomable to us today that those who drafted our nation’s charter nonetheless accepted human slavery, denied women equal treatment and the right to vote, and violently removed Native Americans from their land in what many historians now characterize as genocide. Neither the Constitution’s Framers nor the document they created was flawless. To become a great country, America needs its laws and basic constitutional principles to evolve as our understanding of human capacity and behavior deepens. For many, this means it is critical to reject efforts to limit constitutional protections to the “original intentions” of the flawed men who wrote the Constitution.

The greatness of our Constitution and America itself is dependent on how the Constitution is interpreted to ensure that all people are treated equally and fairly and have the same opportunity to exercise the rights to life, liberty, and the pursuit of happiness as the exclusive group of men who authored the Constitution. As our notions of fairness, equality, and justice have evolved, so too must our interpretation of the Constitution. No provision of the Constitution enshrines this principle more clearly than the Eighth Amendment. 

Progressive perspectives on the Eighth Amendment insist that “evolving standards of decency” must shape and inform the Supreme Court’s application of the Eighth Amendment. Focusing on the original intentions of “Founding Fathers” cannot resolve important questions about punishment today. Continue reading from Constitution Center

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