The text of the Eighth Amendment of the U.S. Constitution reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
In short, the amendment, part of the Bill of Rights, prohibits the federal or state governments from imposing excessive bail or fines or imposing cruel and unusual punishments.
Most Americans have likely formed some opinion as to what ‘cruel and unusual’ means to them. Many parents hesitate to spank their children while others cheer death penalty executions. What makes the phrase ‘cruel and unusual’ more debatable than many provisions in the Constitution, aside from our own subjectivity, is that as a nation, our appetite for what is cruel and unusual will likely continue to change in the future. What might be cruel or unusual in one century could change in the next. Such change could even occur one decade to the next. Or one year.
Currently, a punishment is ‘cruel and unusual’ if it is degrading to human dignity, especially torture, severe and inflicted in an arbitrary fashion, if the punishment is rejected throughout society and if it is patently unnecessary.
Specifically, in the case of Wilkerson v. Utah, 99 U.S. 130 (1879), the punishments of drawing and quartering, public dissection, being burnt alive and disembowelment were all considered to be cruel and unusual.
Many Americans feel that the death penalty is cruel and unusual. However, the Due Process Clause of the 14th Amendment states that ‘no person shall be deprived of life, liberty or property without due process. . .” It is generally accepted that the death penalty is constitutional pursuant to this language, so long as due process is given. However, the Supreme Court has ruled that it is cruel and unusual to execute person who was under the age of 18 when the crime was committed. The execution of the mentally handicapped is also considered by the court to be cruel and unusual.
Regarding excessive fines, such fines cannot be “so grossly excessive as to amount to a deprivation of property without due process of law.” Waters-Pierce Oil Co. v. Texas, 177 U.S. 28 (2000). Generally, the Supreme Court stated it would stay out of the states’ way when states assess fines. However, when the fine amounts to a deprivation of property without due process—generally because the fine is disproportionate to the crime—the Court has stepped in.
Unlike many provisions of the Constitution, the use of subjective words like ‘cruel’, ‘unusual’ and ‘excessive’ make the evolution of this amendment a dynamic thing.
- Shawn Stogsdill
