Eighth Amendment: Not Unusual or Cruel

The Passage

The Eighth Amendment was passed along with nine others that together became known as the Bill of Rights in 1791. There was a huge concern that without written rights, the national government would obtain too much power and become oppressive. Recalling how unfairly the British treated those accused of a crime, colonists created the Eighth Amendment to limit what punishments their new government could inflict. 

Amendment Text

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

What Does It Mean? 

The Excessive Bail Clause allows the accused an option beyond waiting in jail for their trials. Bail is money paid to the court in exchange for being released from jail pending a trial. If an individual appears in court, the bail money is returned. Judges set bail depending on the severity of the crime and the flight risk of the defendant. This clause declares that bail should be set to a reasonable amount.

The Excessive Fines Clause is similar. It states that the court can’t sentence defendants to pay unreasonable fines. The fine should be proportional to the crime committed and consider the defendant's financial history. This clause also applies to when the court seizes property that was illegally obtained. Since the government profits from seizing assets, this civil protection prevents the government from abusing that power.

The Cruel and Unusual Punishments Clause says that not only should the punishment be proportional to the crime, but some punishments are banned altogether. Cruel and unusual punishments are defined as anything arbitrary, unnecessary, degrading, and socially rejected. Some punishments banned by the courts include being burned alive, revoking the citizenship of a natural-born citizen, and death by starvation.

Major Court Cases

The Supreme Court’s decision in Stack v. Boyle, a case from 1951, established that any bail set above the reasonably determined, necessary amount is excessive. The Court has also identified several protected classes that cannot be sentenced to death. For example, in the 2002 case Atkins v. Virginia, it was declared unconstitutional to execute someone who is mentally disabled. In 2005, the same was applied to persons who committed the crime when they were 18 or younger.


The most hotly debated clause is by far the Cruel and Unusual Punishments Clause. Many cases have involved this clause, especially when dealing with the death penalty. The United States has a complicated history with capital punishment. For a brief time in the 1970s, the Supreme Court even declared the death penalty arbitrary, and therefore unconstitutional, in Furman v. Georgia. This decision was ultimately overturned by Gregg v. Georgia in 1976. However, the debate continues over when, if ever, the death penalty can and should be used.

The modern bail system has also been criticized. Not everyone has access to disposable income, but not paying bail could mean waiting in jail for months or years until the trial. Thus, while the bail amount is proportional to the crime, most low-income defendants must choose the burden of bail or await trial in jail. Neither of these options is ideal. As a result of this system, many people in this position choose to accept a guilty plea just to go home. Doing away with cash bail for most criminal cases would reduce prison overcrowding and lift the burden on low-income people. 

Several modern prison practices could be considered “cruel and unusual.” For example, roughly 80,000 people are held in solitary confinement in the United States. Lasting psychological and physical consequences of long-term isolation include anxiety, depression, and suicidal thoughts. These risks are particularly high for juveniles. Although prison and criminal justice reform advocates are staunchly against solitary confinement, the Supreme Court has so far declined to rule on its constitutional status.

General prison conditions are also a cause for concern. While the courts have ruled that issues like not having toilets or denying medical care meet the criteria for cruel and unusual punishment, issues like leaking sewage pipes, unbearable temperatures, or severe overcrowding have not been addressed. These conditions pose severe health and safety risks to inmates, yet they’re largely ignored. 

Why Care?

The Eighth Amendment highlights the fact that every citizen has rights, even those that have committed crimes. A democracy’s strength is shown by how it treats those accused or found guilty of a crime. Those individuals still deserve to be treated with the dignity inherent to a citizen. However, as time goes on, prison conditions and methods of punishment will inevitably change. Additionally, what society considers to be morally permissible, and thus what’s “cruel and unusual,” will shift with time. Therefore, we must be vigilant about calling out practices that are no longer acceptable or that aren’t fitting of a democracy.

Think Further

  1. How have the interpretations of the clauses changed over time?
  2. Do you agree or disagree with how the Court defined cruel and unusual punishment? Why? What, if anything, would you change or add? 
  3. Do you think solitary confinement constitutes cruel and unusual punishment? Why or why not?


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Learn More

  1. “Constitutionality of the Death Penalty in America.” Death Penalty Information Center, Death Penalty Information Center, 2020. https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/constitutionality-of-the-death-penalty-in-america.
  2. Sibilla, Nick, and Scott Bullock. “The Supreme Court Resuscitates the Eighth Amendment.” The Atlantic, Atlantic Media Company, 27 Mar. 2019. https://www.theatlantic.com/ideas/archive/2019/03/unanimous-supreme-court-decision-policing-profit/584506/.
  3. Verrilli, Donald B. “The Eighth Amendment and the Right to Bail: Historical Perspectives.” Columbia Law Review, vol. 82, no. 2, 1982, p. 328. https://www.jstor.org/stable/1122277.