CHAPTER
11

The Eighth Amendment: Bail and Punishment

In This Chapter

• The Eighth Amendment
• Excessive bail and fines
• Cruel and unusual punishment

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

The Eighth Amendment’s vague language has led to confusing and conflicting court rulings over the years, especially with shifts in society’s standards and the makeup of the Supreme Court. What does “excessive” mean? What is “cruel and unusual”? And do the standards apply differently to different types of defendants? Children? People with mental disabilities?

In particular, there’s been a lot of uncertainty over the death penalty. Most of us don’t like it, but many of us think it is necessary, and all of us think it should be administered fairly. Society’s attitudes have been reflected in the convoluted and sometimes contradictory Supreme Court rulings.

Excessive Bail and Fines

In Olde England, the same sheriff who arrested you had the right to decide whether you should be released on bail, and the king could have you arrested and confined without bail. The unfairness was obvious, and Parliament nicked away at the power to withhold bail until 1689, when the English Bill of Rights declared that if bail was granted, it could not be excessive.

Our Eighth Amendment says pretty much the same thing. There is no right to be granted bail and released pending trial, but if bail is granted, the amount cannot be unreasonable for meeting the purpose of granting bail. The primary purpose of granting bail is to ensure the defendant shows up in court to face the charges. You’re less likely to skip town if it means you’re going to take a serious financial hit.

In considering bail, judges are supposed to balance the amount of bail—or whether to grant bail—against the severity of the crime.

In a 1987 case, United States v. Salerno, the Supreme Court held that denying bail and keeping a defendant in jail prior to trial is not necessarily a violation of the Eighth Amendment. However, the court said the government must prove the defendant might be a danger to the community. Chief Justice William Rehnquist’s opinion said the rule for bail is that “the government’s proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil.”

In many cases, particularly for less serious crimes, or when a defendant has an otherwise relatively clean criminal record and strong ties to the community, pretrial release is granted “on recognizance,” or without any financial commitment. The defendant is released after promising to appear at the trial or the next scheduled hearing.

When charges are serious, however, especially for any sort of homicide, or when the defendant is considered a flight risk, the judge often requires bail in the form of a financial bond. A defense attorney ordinarily wants the sum to be as low as possible, of course, while the prosecutor may seek higher bail. Because the primary purpose of the bail is to guarantee appearance, the judge may set the bond much higher for a rich person, although the Supreme Court has held that judges do not necessarily need to consider a defendant’s financial status.

What It Means to You

If bail is set at $100,000, the court may require only a percentage, often 10 percent, to be put down in cash. If the defendant does not show up, however, the entire amount is forfeited and a warrant is issued for the defendant as a fugitive. If you put up your assets to guarantee someone’s bail, you could lose your house if he or she doesn’t show up for trial.

When a crime is particularly serious and the defendant is a flight risk likely to skip town, the judge may deny bail altogether. Besides guaranteeing appearance, a prosecutor also can argue that the defendant should be kept in custody as a matter of preventive detention—to keep him or her from committing further crimes.

This is a tricky area because our judicial system is based on the presumption of innocence and on penalizing people not for what they might do but only for what they actually have done. Someone has to be a pretty bad person for a judge to deny bail on the grounds that society is safer if he or she remains behind bars while awaiting trial.

Sometimes, besides money, judges will set conditions for bail, such as requiring a defendant to stay away from victims, witnesses, or the scene of the crime.

Cruel and Unusual Punishment

One person’s idea of cruel might be another person’s idea of tough love. It’s the same dilemma whether raising kids or punishing society’s wrongdoers. And while strict constructionists think the Constitution should be interpreted as closely as possible to the original intentions of the framers in 1787, the Eighth Amendment is an example of how the Constitution is flexible, bending to changes in society. After all, pretty much everyone agrees that society’s views on punishment have changed. As the Supreme Court ruled in one case, the standard for cruel and unusual “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

One literal interpretation has not changed much over the years, however. The and is important in the phrase cruel and unusual punishment. The courts have ruled, to varying degrees, that punishment can be cruel. Punishment also can be unusual. But it’s not supposed to be both.

Supreme Court rulings in the nineteenth century made it clear that some forms of punishment would always be unconstitutional as cruel and unusual, including drawing and quartering, beheading, burning alive, and disemboweling. Death by hanging and by firing squad were permissible, however, in part because those were the common ways states executed criminals. Even if it was cruel, it wasn’t unusual.

One of the decisions that reflected changing views in society came in a 1962 case, Robinson v. California. The Supreme Court determined a 90-day sentence for being a drug addict was cruel and unusual punishment because drug addiction “is apparently an illness,” and authorities were trying to punish the defendant for an illness rather than for a specific criminal act.

In recent years, court cases have challenged long sentences for relatively minor crimes, or for minors. For example, the Supreme Court has ruled that minors can no longer be sentenced to life in prison without the chance of parole except for homicides. Such sentences, the court ruled, violate the Eighth Amendment as cruel and unusual punishment.

It’s important to remember that sentences are supposed to meet the acceptable goals of punishment—retribution and deterrence—and that punishment is excessive if it does not fulfill those purposes or if it’s out of proportion to the severity of the crime.

Three Strikes and You’re Out

The “three strikes and you’re out” laws many states have enacted in recent years have prompted a range of court rulings.

The Supreme Court upheld a mandatory life sentence for a three-time loser even though his three nonviolent felonies netted him barely $200.

In another case, however, the court overturned the conviction of a guy who wrote a $100 bad check. Under state recidivism laws, he received a mandatory life sentence without the chance for parole. The court said it was cruel and unusual that he had no chance for parole, while the defendant in the previous case at least had a chance at parole after 12 years in prison.

In a third case, the Supreme Court said a life sentence without the possibility of parole for a repeat offender is not necessarily cruel and unusual, particularly considering that offender had a long record of violent crime and the most recent conviction was for possession of more than 600 grams of cocaine.

In a 1983 case, Solem v. Helm, the Supreme Court for the first time said the length of a sentence in and of itself could be cruel and unusual if it was “disproportionate” to the severity of the crime. The court has waxed and waned on this “proportionality” test over the years, but it often seems to come back to three factors:

• The gravity of the offense and the harshness of the penalty
• Sentences imposed on other criminals in the same jurisdiction
• Sentences imposed for the same crime in other jurisdictions

On numerous occasions, lower courts, both state and federal, have held that conditions in certain prisons or entire prison systems violate prisoners’ protections against cruel and unusual punishment. The Supreme Court in general has endorsed the power of the courts to step in, but at the same time has indicated that courts need to proceed with caution when coming in conflict with the states or the federal executive branch over how prisons are run.

Cases

Trop v. Dulles (1958): In this case, the Supreme Court ruled that punishing a citizen by taking away citizenship is a cruel and unusual punishment. The high court called it worse than torture, “total destruction of the individual’s status in organized society,” and “a fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment.”

The Supreme Court has had many opportunities to declare the death penalty unconstitutional, and it has overturned a number of convictions based on the way death sentences were handed down. But the court has never said capital punishment itself is cruel and unusual. “Whatever the arguments may be against capital punishment,” the court held in a case in the 1950s, “the death penalty has been employed throughout our history and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.”

But several factors have led courts and juries to be more careful about applying the death penalty in the twenty-first century. A number of studies, reviewing evidence, claims that dozens of people have been executed even though they were not guilty of the crimes for which they were convicted. Postconviction work by the Innocence Project and other groups of lawyers who oppose the death penalty has overturned a number of death penalty convictions. Advances in the use of technology, particularly DNA analysis, have helped lawyers review and question death penalty convictions. New studies have cast more doubt on the veracity and reliability of eyewitness testimony. Many other developed countries have banned the death penalty. And some right-to-life advocates have rejected the inconsistency of opposing abortion but supporting the death penalty.

But the recent increasing unease over the death penalty—a growing number of states either has outlawed the death penalty or simply stopped imposing it—is nothing new in America. Concern about the death penalty led many states to suspend executions in the 1960s, and during a period from 1967 to 1976, there were no court-ordered executions in the United States.

In a 1972 landmark case, Furman v. Georgia, a narrowly divided court effectively struck down every existing state death penalty. The 5–4 majority was divided over whether the death penalty was always unconstitutional as cruel and unusual and whether it could be legal if the states could come up with capital punishment procedures that were not random and capricious and did not discriminate against blacks and poor people.

In the Furman decision, the Supreme Court laid down restrictions on punishment, declaring any form of punishment is unconstitutional if it is …

• Degrading to human dignity—as in torture.
• A severe punishment obviously inflicted in a wholly arbitrary fashion.
• A severe punishment clearly and totally rejected throughout society.
• A severe punishment that is patently unnecessary.

We the People

In the Furman case, Justice Potter Stewart criticized the random application of capital punishment in America this way: “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”

The criticisms and guidelines laid down by the high court in the Furman decision gave the states a road map for rewriting their capital punishment laws. In the following months, 35 states, starting with Florida, passed new death penalty laws that aimed to remove the arbitrary and irrational aspects of their old laws.

One of the key aspects was the two-part trial: first a jury would decide whether the defendant was guilty of the crime and then it would decide whether the defendant should be sentenced to death. Relying on suggestions from court decisions, the new procedure ensured that judges and juries considered a defendant individually and personally and weighed any mitigating factors. Because death is a unique punishment, the court ruled, the death penalty needs to be considered on a case-by-case basis, with thought given to each defendant’s individual circumstances and the particular details of each case.

Before any more executions took place, the Supreme Court reconsidered a series of cases based on new death penalty laws passed by several states. The justices have remained mindful that the reasons for any penalty, including a death sentence, are retribution and deterrence, and that it may be preferable for state legislatures to lay out the particulars. As a result, the Supreme Court issued a series of opinions in 1976, including Gregg v. Georgia, which opened the door for executions to resume.

Today, each state’s death penalty process includes the following:

• Standards for the sentencing authority, whether judge or jury, to evaluate both the circumstances of the offense and the character of the accused
• A two-part trial for considering first guilt and second the sentence
• Automatic appeal of both the conviction and the sentence to the state supreme court

Subsequent Supreme Court decisions have narrowed the range of crimes that carry the death penalty and expanded the range of reasons for sentencing defendants to life in prison instead of execution. For example, rape was a capital crime in many states, but a 1977 Supreme Court case, Coker v. Georgia, said the death sentence was cruel and unusual punishment for the rape of an adult female. The court seemed to be saying that the death penalty may be imposed only for the intentional killing of another person.

In recent years, however, proposals have been made in some states to execute repeat child molesters. The courts also have become more attuned to racial bias in the way the death penalty has been applied and to the quality of legal representation in those cases.

Cases

The ACLU says 455 men were executed for rape in the United States between 1930 and 1967. Of them, 405—almost 90 percent—were black.

Three cases before the Supreme Court in 2002 looked at the quality of representation provided to defendants who were charged with capital crimes but could not afford their own attorneys. In two cases, the high court rejected appeals from death row, once holding that a defendant’s rights were not violated when his lawyer skipped the closing argument to the jury, and another time when a defendant was assigned a lawyer who had represented the victim in an earlier case.

However, the Supreme Court did overturn the Texas murder conviction of a gay man whose court-appointed lawyer slept through parts of the trial. The prosecution, which had argued in favor of the death penalty on the grounds that prison was not such a severe punishment for a gay man, futilely claimed the defense lawyer snoozed only in unimportant parts of the trial.

Other recent Supreme Court cases have determined that the states cannot impose an automatic death penalty for certain crimes, such as the murder of a police officer or for prison inmates who are already serving life sentences without the chance of parole. The Supreme Court also has made it more difficult for states to impose the death penalty on defendants accused of felony murder—for example, when they participate in a crime in which someone is killed but they don’t actually pull the trigger themselves.

Other rulings have said the insane and the mentally handicapped can no longer be executed, and a 2005 case, Roper v. Simmons, prohibits states from executing defendants whose crimes were committed before they turned 18 years old.

For a time, it appeared the Supreme Court was moving away from “victim impact statements,” but recent decisions have opened the door for judges and juries to consider the character of victims as well as defendants.

In recent years, the Supreme Court has repeatedly refused to outlaw lethal injection as cruel and unusual punishment. But it is clear that the death penalty is far from a settled issue in American jurisprudence.

In 2015, in a 5–4 vote in Glossip v. Oklahoma, the Supreme Court upheld Oklahoma’s use of the controversial lethal injection drug midazolam despite headlines and lawsuits blaming the drug for several executions that apparently caused pain to the prisoner and took longer than expected. A striking part of the court’s decision was a long, passionate dissent by Justices Stephen Breyer and Ruth Bader Ginsburg, which indicated they believe any application of the death penalty may be cruel and unusual punishment. “I believe it highly likely that the death penalty violates the Eighth Amendment,” Justice Breyer wrote. “At the very least, the court should call for a full briefing on the basic question.”