This post continues our series examining the provisions of the Bill of Rights to the U.S. Constitution in connection to your rights to due process under the law when you are accused of a crime. Thus far we have considered the Fourth, Fifth, and Sixth Amendments to the Constitution; here, we will look at the Eighth Amendment.
The Eighth Amendment is one of the shortest in the Constitution, comprising a single sentence:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
This elegance of simplicity in its language, though, can be misleading. The amendment in fact contributes to procedural due process protections in multiple ways.
The question of whether an amount set as bail for someone accused of a crime is excessive has two facets: preventive detention situations, and whether a bail amount is more than is necessary to protect the government’s interest in a given case.
Preventive detention refers to matters in which bail is denied to someone because of the fear that if released on bail that person would represent a danger to the community. This is generally not subject to challenge under the Eighth Amendment, although the accused has the right to an adversary hearing before the court before bail can be denied.
Otherwise, what makes bail “excessive” is when the amount is set so high that it becomes more than what is reasonably necessary to ensure that the accused will stand trial. This is something that is determined on a case-by-case basis (that is, there is no “formula” that judges use to set bail depending on specific types of crimes). If the accused believes that the bail amount is too much, the recourse is to appeal for a reduction, and that appeal can if need be eventually go all the way to the U.S. Supreme Court Justice sitting for the relevant federal circuit.
This part of the amendment mostly applies to criminal sanctions and not to civil matters, although it may be applicable to civil forfeiture cases as well. Interestingly, excessive fines have not yet been the subject of any significant court case.
Cruel and unusual punishments
A punishment is excessive – and thereby unconstitutional – if it makes no measurable contribution to acceptable goals of a punishment (that is, the punishment simply a needless imposition of pain and suffering) or is grossly out of proportion to the severity of the crime. For example, a law that imposes the death penalty for rape when the accused did not himself kill anyone during the commission of a crime has been held to be excessive and thereby violative of the Eighth Amendment.
As you might expect, this part of the amendment has been considered mainly in the context of death penalty cases, with regard to whether the penalty itself is cruel and unusual or concerning methods of execution. Although the U.S. Supreme Court has held that the death penalty itself is not cruel and unusual, it has curbed some laws that apply it based on factors such as whether the law did not provide enough discretion to the jury it the application of a death sentence.