8th Amendment

The 8th Amendment to the United States Constitution, a part of the Bill of Rights, prohibits the federal government from imposing excessive fines, excessive bail, and cruel and unusual punishment. This is one of the shortest amendments to the Constitution, but it has a powerful effect, and has sparked a number of debates over the years since its ratification. To explore this concept, consider the following 8th Amendment definition.

Definition of 8th Amendment


  1. An amendment to the United States Constitution that prohibits the imposition of excessive fines, excessive bail, and cruel and unusual punishment.


Ratified on December 15, 1791.

What is the 8th Amendment

The 8th Amendment to the United States Constitution protects American citizens accused of a crime from being held on an amount of bail that is so excessive as to prevent them from gaining release from confinement to defend their cases. Additionally, this important addition to the Bill of Rights prohibits the government from leveling excessively high fines, or imposing punishment that is considered to be cruel and unusual, on convicted individuals.

Like many of the provisions of the U.S. Constitution and its amendments, the actual wording of the Eighth Amendment is a bit vague, making it the topic of some disagreement. Because of this, the Amendment has been a frequent topic of discussion and interpretation for the U.S. Supreme Court. The 8th Amendment says:

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

History of the 8th Amendment

The history of the 8th Amendment begins in England in the late 1600s, when a man named Titus Oates committed perjury against a number of people, leading to their receiving the death penalty. Later, Oates was convicted of these crimes of perjury and sentenced to indefinite imprisonment, as well as removal from his jail cell each year to spend two days in the pillory (stocks), and one day of whipping while tied to a moving cart.

A few short years later, Parliament enacted the English Bill of Rights, which prohibited the infliction of cruel and unusual punishment. In explaining the new provisions, Parliament explained that this prohibition stemmed directly from the punishment that had been inflicted on Titus Oates, whose punishment they described as exorbitant, extravagant, barbarous, and inhuman.

In drafting the American Bill of Rights, the framers took their cue directly from the English Bill of Rights, taking steps to ensure the government was prevented from inflicting cruel and unusual punishment. The Eighth Amendment was lobbied by George Mason and Patrick Henry, and then proposed to Congress by James Madison. It was ratified and added to the Bill of Rights on December 15, 1791.

Excessive Bail

The U.S. system of law is based on the concept that an “accused is presumed innocent until found guilty.” The purpose of bail is to provide a way for someone accused of a crime and taken into custody to be released pending his trial. To help ensure the accused returns for trial after his release, the system of bail was set up, in which the accused may post a specified amount of  money or other valuable item which will be returned to him only after he shows up for all of his scheduled court hearings and the matter is concluded.

The amount of bail required is set by the court, which considers the severity of the offense, and whether there are strong indicators that the accused might flee the jurisdiction to avoid trial. Such considerations include whether the accused has strong ties to family and community, steady employment in the community, and whether he has sufficient financial resources to flee.

The temptation to impose a bail amount that is so great that the individual has no possibility of securing his own release pending trial was seen in pre-Bill of Rights England. While modern courts in the U.S. have the authority to set a bail amount largely at their discretion, especially in cases of very serious crimes committed by very wealthy individuals, the Eighth Amendment protects individuals against abuse of this privilege.

The Supreme Court has interpreted the 8th Amendment to mean that bail can be denied if the charges are serious enough, or if it is reasonably believed that releasing the accused may pose a danger to the community. The Court also ruled that “preventative detention without bail” is allowed in certain circumstances. In the 1987 case United States vs. Salerno, the Supreme Court held that:

“… the government’s proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil.”

Excessive Fines

The excessive fines clause of the 8th Amendment is a bit more vague than the excessive bail and cruel and unusual punishment clauses. Because fines are imposed after a defendant has been convicted, and have nothing to do with depriving him of his liberty prior to trial, U.S. courts have greater discretion in imposing fines for criminal acts.

There are still checks and balances built into the system where fines are concerned, as, if a lower court imposes a fine determined by a higher court to be an abuse of discretion, the fine may be overturned by a higher court. This helps eliminate the imposition of fines that are arbitrary or excessive.

In the 1909 landmark case of Waters-Pierce Oil Co. v. Texas, the Supreme Court defined excessive fines as those that are:

” … so grossly excessive as to amount to a deprivation of property without due process of law.”

The court further held that the court cannot interfere with state legislation when it comes to fixing fine amounts, unless they are so excessive as to effectively amount to deprivation of property without due process. This means that a fine imposed by a state court can only be deemed excessive if there is no pre-existing state legislation specifying the nature and amount of the fine, or if the fine is so extreme as to take away the individual’s property rather than simply imposing a fine.

Supreme Court Ruling on Excessive Fine

In 1998, the U.S. Supreme Court heard the matter of United States v. Bajakajian, in which Mr. Bajakajian took more than $10,000 with him as he left the country, but failed to make the appropriate report. Bajakajian was convicted and fined $357,144 for not declaring the amount over $10,000 taken out of the country. The matter was appealed to the U.S. Supreme Court, which ruled that the fine was excessive, as it amounted to the entire amount of money the defendant at taken with him, and was therefore grossly disproportional to the offense committed.

Cruel and Unusual Punishment

The cruel and unusual punishment clause of the Eighth Amendment prohibits both federal and state governments from imposing certain punishments, regardless of the crime committed. While the Amendment does not specifically define punishments to be considered cruel and unusual, case law throughout U.S. history has deemed such punishments as castration, burning alive, drawing and quartering, public dissection, and any punishment designed to cause a lingering death, to be beyond the concept of public decency, and therefore cruel and unusual.

The Supreme Court has also held that any punishment handed down should be proportionate to the nature of the crime committed. In the 1972 case of Furman v. Georgia, the Court provided four basic principles to be used in determining whether a punishment should be considered cruel and unusual:

  1. Any punishment that is so severe as to degrade human dignity, including torture
  2. Any punishment that is inflicted solely in an arbitrary manner
  3. Any punishment that is, or would be, wholly rejected by society
  4. Any punishment that is clearly or blatantly unnecessary

Finally, the Supreme Court has ruled, in 1988, that the death penalty amounts to cruel and unusual punishment if applied to anyone who was under the age of 18 at the time the crime was committed. Additionally, the Court ruled that it would be cruel and unusual punishment to execute any mentally handicapped individual.

Death Penalty and the 8th Amendment

The death penalty has quite possibly been the most controversial topic of all time, with people, including judges, lining up on either side. Those opposing the death penalty claim that it is unconstitutional, in that it treats criminals as non-humans, and is therefore inconsistent with the fundamental protections of the 8th Amendment, that even the vilest criminal remains a human being, with a right to common human dignity.

Those supporting the death penalty for the most serious of crimes point out that execution has been used to rid society of its most violent criminals, and that, in the words of Chief Justice John G. Roberts:

“Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual …”

As the Supreme Court has ruled that the imposition of the death penalty is not a violation of the Constitution, or of the Eighth Amendment, the issue of whether to utilize the punishment is left to each individual state. As of July 1, 2015, 31 states have the death penalty, though four of those states have a moratorium imposed by the state’s governor.

Death Penalty States

Alabama Idaho  Nevada  South Dakota
Arizona Indiana  New Hampshire  Tennessee
Arkansas Kansas  North Carolina  Texas
California Kentucky  Ohio  Utah
Colorado Louisiana  Oklahoma  Virginia
Delaware  Mississippi  Oregon  Washington
Florida  Missouri Pennsylvania  Wyoming
Georgia  Montana  South Carolina

Supreme Court Ruling on the Death Penalty and Mentally Retarded Criminals

In 1998, Daryl Atkins and his friend robbed and shot a man named Eric Nesbitt. Atkins was found guilty at trial of abduction, armed robbery, and capital murder. In spite of the fact that Dr. Evan Nelson testified at trial that Atkins suffered from mild mental retardation, the jury sentenced Atkins to be executed.

Atkins’ attorneys appealed the sentence to the Virginia Supreme Court, which upheld the lower court’s decision. When the matter was taken before the U.S. Supreme Court on the grounds that executing a person with a mental disability violated the protections of the 8th Amendment.

The Court agreed, stating that a trend had begun with certain states banning use of the death penalty for the mentally retarded, which shows “evolving standards of decency that mark the progress of a maturing society.” Justice Stevens went on to say that clearly “the practice, therefore, has become truly unusual.” As such, the imposition of the death penalty on anyone with a mental disability is unconstitutional.

Related Legal Terms and Issues

  • Defendant — A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Due Process –– The fundamental, constitutional right to fair legal proceedings in which all parties will be given notice of the proceedings, and have an opportunity to be heard.
  • Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
  • Perjury – The willful telling of an untruth, or giving of false testimony, after having taken an oath.
  • Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to make a determination in a civil matter.