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GUARANTEED PROTECTION
AGAINST EXCESSIVE PUNISHMENTS
The Eighth Amendment prevents the federal
government and the states (through application
of the Due Process Clause of the Fourteenth
Amendment) from imposing unjust pre-trial bail
against criminal defendants, inflicting brutal or
inequitable sentencing schemes, applying
inhumane methods of punishment and requires
sentences, including fines and forfeited property,
be proportionate to convictions.
Text of our Eighth Amendment is derived from and
closely mirrors the part of England’s Bill of Rights
declaring, “excessive bail hath been required of
persons committed in criminal cases, to elude the
benefit of the laws made for the liberty of the
subjects; and excessive fines have been imposed;
and illegal and cruel punishments inflicted.”
The framers of the constitution had fought tyranny
face-to-face. They feared that any government
exercising power over its citizens might be tempted
to misuse its power, perhaps by using torture to
extract confessions from the accused or by creating
crimes in order to punish and oppress its citizens or
anyone designated an enemy of the state. In fact,
Abraham Holmes, a member of the Massachusetts
Ratifying Convention for the U.S. Constitution,
explained that without prohibitions on cruel and
unusual punishments, governing powers are
otherwise unrestrained “from inventing the most
cruel and unheard-of punishments, and annexing
them to crimes…[and] that racks and gibbets may
be amongst the most mild instruments of their
discipline.”
Today, debates over cruel and unusual punishment
tend to focus on the death penalty. For example,
the American Civil Liberties Union opposes the
death penalty and takes the position that granting
the state the right to kill people “is inconsistent
with the fundamental values of our democratic
system.” On the other hand, the Criminal Justice
Legal Foundation supports the death penalty and
has filed various Amicus Curiae briefs in the
Supreme Court that are consistent with its position.
At the end of the day, the Supreme Court has
rejected the notion that the death penalty invariably
violates the Eighth Amendment’s prohibition against
cruel and unusual punishment for well over a
century and on many occasions. That said, the
Supreme Court has carved out a handful of
categorical restrictions against the use of the death
penalty including instances of juvenile offenders,
offenders whose intellectual functioning is on the
lower end, and non-homicide convictions.
Nonetheless, the death penalty is authorized in 27
states and in June 2021, the Pew Research Center
issued a Report revealing that public opinion
polling continues to show that a majority of
Americans support the death penalty for convicted
murderers.
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