Eighth Amendment

Excessive Bail

The Excessive Bail Clause of the Eighth Amendment can be traced to the traditional English law principle prohibiting the incarceration of an accused party prior to the establishment of guilt. Much debate has ensued in America regarding the interpretation of the precise meaning of “excessive bail” and whether it guaranteed all criminals the opportunity for bail or simply limited the amount of bail for individuals whose release before trial did not contravene some important governmental interest. The governmental interest that must be satisfied, at least historically, has been to ensure that a defendant appears for trial. If the amount of bail exceeds what is necessary to ensure that end, it could be deemed excessive.

In more recent times, Congress enacted the Bail Reform Act (1984), which denies bail altogether for those accused of certain serious federal crimes if [Page 281]a court concludes that the accused is a flight risk or a threat to the safety of others. In United States v. Salerno (1988), such “preventative detention” of a defendant awaiting trial was found to be constitutional. Reflecting the continuing historic tension regarding the meaning of the “excessive bail” provision, the Bail Reform Act, which introduced preventive detention, also sought to ensure that bail amounts would be proportional to the offense committed by the defendant.

Excessive Fines

The second clause of the Eighth Amendment has been interpreted to bar “excessive fines” that are imposed by and payable to the government. This clause went largely undefined until relatively recently, when the Supreme Court decided Austin v. United States (1993). While the provision was initially associated with fines in criminal proceedings, the Court declared in Austin that the bar against excessive fines also applies in civil actions brought by the government seeking forfeiture of property, since the forfeiture constitutes a form of punishment. In Austin and a subsequent case, United States v. Bajakajian (1998), the Court also imposed a proportionality principle, requiring a measured relationship between the punitive forfeiture and the gravity of the offense, including its harmful effects, to ensure that the punishment is not excessive.

Cruel and Unusual Punishment

The Cruel and Unusual Punishment Clause is the most dynamic and debated tenet of the Eighth Amendment. At the center of the Court's interpretation of this standard is the fact that overlying moral views of the country are constantly changing. This presents a significant problem when attempting to define what constitutes “cruel” or “unusual” punishment, since according to the Court's language in Trop v. Dulles (1958), “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society” (p. 101).

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