Hello and welcome to the ninth installment of our series on what’s in the Bill of Rights. Here we investigate the short and mighty Eighth Amendment:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.
That’s it! But what a portmanteau of rights is found in this short sentence. We’ve already covered the intrinsic injustice of having to post bail in our post on the Sixth Amendment; here the American people demand that bail set not be “excessive”. They realized, of course, that posting bail is a way to let people with money await trial at home while people without money await trial in jail—they are imprisoned without having been convicted of a crime simply because they don’t have the money to post bail.
Seeing that courts could begin to demand ever-higher bail simply to bring in extra money to the city, state, or federal government, or to keep people they disliked in jail before trial, Americans say here in the Eighth that “excessive” bail cannot be levied, but that word has proven dangerously flexible. We don’t tend to mind it when someone accused of an inhuman crime—child assault, mass murder—is given $5 million bail just to keep them in prison. But we tend not to know that for many people accused of crimes, even $500 is “excessive” bail they can never pay. They are out of the public eye and they fall through the cracks. Until we put a dollar amount on “excessive”, this part of the Eighth won’t ever be enforced.
The question of excessive fines, on the other hand, is constantly in the public eye. We think immediately of someone who has a minor accident and asks for $20 million for their “mental anguish”. In 2007 a man whose pants were lost by a dry cleaner sued them for $65 million; cases like these come to mind. But it doesn’t have to be that extreme. In 1909, the Supreme Court defined “excessive fines” as “so grossly excessive as to amount to a deprivation of property without due process of law’. If you are fined so harshly that you lose everything you own, the fine was likely excessive.
The final clause is deeply embedded in our national culture: cruel and unusual punishment. This phrase was borrowed by the Founders from 1689 English Bill of Rights—in fact, the whole Eighth Amendment is a cut-and-paste of the end of sentence in the EBR: “…that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The prohibition against cruel and unusual punishment was written into the UN Universal Declaration of Human Rights in 1948, and the 1984 UN Convention against Torture also prohibits cruel and unusual punishment, and shorthands this as torture.
So we see that this is clearly an idea that gained traction in the modern world and is almost universally recognized as just and expressive of a basic or natural human right. Sadly, few nations have upheld this ban on torture, including the U.S.
It’s not just about what the government or the army does—our Bill of Rights is meant to be upheld and practiced by all of us. If American citizens asked for these rights, we must want to enforce them, right? We want them because we want them to be put in practice in our small towns, big cities, etc.—wherever we live. But Americans, official, military, and civilian, have practiced cruel and unusual punishment on their black peers and fellow Americans. Immigrants have been treated this way. Gay Americans, people in police custody, and people in jail have been subject to cruel and unusual punishment. The mentally ill, orphans, and young people in state custody have all been subjected to it. Whether it’s physical torture, terrorism, beatings, or psychological torture, all are outlawed by our Constitution, and so it’s not just illegal but un-American to allow or commit any of them, against anyone.
We do well to go back to that short sentence that is the Eighth Amendment and remember that we can’t complain about “the government” failing to uphold its tenets: we the people asked for these rights, so we the people must be the first to defend them, not just for ourselves but for all Americans, and, if we want to truly lead the world, all people we deal with.
The Historic Present 