1. THE 8 AMENDMENT:
BAIL, FINES AND
PUNISHMENT
TH
Chapter 13

2. Introduction

The 8th Amendment protects three rights:


That excessive fines shall not be imposed


That excessive bail shall not be required
That cruel and unusual punishment shall not be
inflicted
This Amendment has a lot of controversy
because of interpretations about whether the
death penalty is cruel and unusual

3. A Brief History of Punishment


Massachusetts Body of Liberties (1641)
enacted a right to bail and prohibited cruel and
unusual inhumane punishment
Massachusetts Bay Colony sought to
eliminate English punishments as cutting off
hands and burning at the stake

4. A Brief History of Punishment



The Body of Liberties allowed the death
penalty for religious offenses such as
blasphemy but not for burglary and robbery
Society itself determined and continues to
decide what is reasonable and unreasonable
punishment
Our criminal justice system is responsive, not
reactive, to social changes

5. Bail


Money or property pledged by a defendant for
pretrial release from custody that would be
forfeited should the defendant fail to appear
at subsequent court proceedings
Bail serves two purposes:
1.
Helps to assure the appearance of the accused
at court proceedings
2.
It maintains the presumption of innocence by
allowing individuals not yet convicted of a crime
to avoid continued incarceration

6. Bail

Also allows individuals to:



Prepare a defense
To continue earning income if employed
Bail itself is not guaranteed

Only excessive bail is prohibited which is not
clearly defined

Bail may be denied in capital cases and when the
accused has threatened possible trial witnesses

7. The Evolution of Legislation and
Case Law on Bail

The Bail Reform Act of 1966

Helped indigent defendants who were unable to
post bail

Ensured that poor defendants would not remain in
jail only because they could not afford bail

Required judges to consider other ways for
defendants to guarantee their return to trial

The primary bail condition was release on
recognizance
 The
court trusts them to appear in court when
required

8. The Evolution of Legislation and
Case Law on Bail

The Bail Reform Act of 1984


Granted judicial authority to include specific
conditions of release for the community's safety
Allows judges to consider the potential criminal
conduct of those accused of serious offenses and
deny bail on those grounds
 Preventive
Detention

9. The Evolution of Legislation and
Case Law on Bail

The Bail Reform Act of 1984

Ja c ks o n v. I ia na (1972)
nd
 Government
may detain dangerous defendants who
may be incompetent to stand trial

A d ing to n v. Te x a s (1979)
d
 Government
may detain mentally unstable
individuals who present a public danger

Unite d Sta te s v . Sa le rno (1987)
 Pretrial
detention under this act did not violate the 8th
Amendment

10. The Evolution of Legislation and
Case Law on Bail

The Bail Reform Act of 1984

Sta c k v. Bo y le (1951)
 Bail
set at a figure higher than an amount reasonably
calculated to fulfill its purpose is excessive under the
8th Amendment

The excessive bail prohibition has never been
formally incorporated to apply to the states under
the 14th Amendment, allowing states to deal with it
through their constitutions, legislation and case
law

11. Fines


The prohibition against excessive fines has
not been incorporated, so it does not apply to
the states
Excessive fine prohibition does not apply in
the civil area

Because civil cases are between private parties
and the Constitution regulates the government

12. Fines

In civil lawsuits, the plaintiff seeks monetary
damages from the defendant to right an
alleged wrong

Compensatory damages- reimbursement to the
plaintiff for actual harm done
 medical

expenses or lost business
Punitive damages- fines above and beyond actual
economic loss to punish the defendant in a civil
trial
 Additional
payments to the wrongdoer and a warning
to others not to engage in similar conduct

13. Asset Forfeiture and the Prohibition
against Excessive Fines

Asset Forfeiture



The seizure by the government, without
compensation, of money and property connected
with illegal activity
Property connected with illegal activity may be
forfeited when used as a conveyance to
transport illicit drugs
Real estate used in association with a crime
and money or other negotiable instruments
obtained through criminal activity also can be
seized and is considered a civil sanction by

14. Asset Forfeiture and the Prohibition
against Excessive Fines

A tin v. Unite d Sta te s (1993)
us

The Supreme Court ruled that the 8th Amendment
prohibition against excessive fines applies to civil
forfeiture proceedings against property connected
to drug trafficking

The amount seized must bear some relation to the
value of the illegal enterprise under the 8th
Amendment

This is the first decision on the limitation of the
government’s power to seize property connected
with illegal activity

15. Asset Forfeiture and the Prohibition
against Excessive Fines

Unite d Sta te s v. Urs e ry (1996)


Forfeiture is not double jeopardy because it is
considered a civil sanction rather than an
additional criminal action
Civil Asset Forfeiture Reform Act (2000)

Key changes:
1.
2.
3.
Burden of proof is “preponderance of the
evidence”
Statute of Limitations is five years
Destruction of property to prevent seizure

16. Cruel and Unusual Punishment

The final clause of the 8th Amendment

What is “cruel and unusual?”


Depends on what society believes it to be
Co ke r v. G e o rg ia (1977)

Punishment is excessive and unconstitutional if
it:
1.
2.
Makes no measureable contribution to acceptable
goals of punishment and hence is nothing more
than the purposeless and needless imposition of
pain and suffering
Is grossly out of proportion to the severity of the

17. Cruel and Unusual Punishment

The courts have used three inquiries in
assessing constitutionality of cruel and
unusual punishment:
1.
2.
3.
Whether the punishment shocks the general
conscience of a civilized society
Whether the punishment is unnecessarily cruel
Whether the punishment goes beyond legitimate
penal aims

18. Cruel and Unusual Punishment

The Supreme Court has established three
criteria for proportionality analysis (making
the punishment fit the crime):
1.
2.
3.
The gravity of the offense and the harshness of
the penalty
The sentences imposed on other criminals in
the same jurisdiction
The sentences imposed for the commission of
the same crime in other jurisdictions.

19. Cruel and Unusual Punishment

Ewing v. Ca lifo rnia (2003)


The court considered whether a sentence of 25
years to life imprisonment for felony theft under
“three strikes” sentencing was cruel and unusual
5 to 4 vote held that California’s three strikes law
did not violate the 8th Amendment

20. Cruel and Unusual Punishment

The Supreme Court tackled the issue of
corporal punishment


Causing bodily harm through physical force (i.e. –
whipping, flogging, or beating)
I ra ha m v. Wrig ht (1977)
ng


The state may impose such corporal punishment
as is necessary for the proper education of the
child for the maintenance of group discipline
This ruling is controversial

21. Punishment Options

The American criminal justice systems
continues to works with different ways to meet
the goals of punishment



Prison, parole, probation, intermediate
sentencing, fines, restitution, capital punishment
Not all of these options meet the expectations
of the public or the politicians
The real challenge is to inquire whether
existing means work and, when they do not,
what might?

22. Physical Forms of Punishment

Modern technology presents several possible
treatments for criminals:


Antabuse & Depo-Provera
Other forms of physical bodily punishment for
criminal have disappeared

The death penalty remains in use and is
controversial

23. Capital Punishment



The death penalty dates back centuries
Society has always struggled with balancing
societal needs with socially acceptable means
of punishment
History records many methods of execution:

Buried alive, thrown to wild animals, drawn and
quartered, boiled in oil, burned, stoned, drowned,
impaled, crucified, pressed to death, smothered,
stretched on a rack, disemboweled, beheaded,
hanged or shot

24. Capital Punishment

In Biblical times


Greeks


Poison from hemlock
Romans


Stoned to death or crucified
Beheading, clubbing, strangling, drawing and quartering or
feeding to lions
Dark Ages

Submerged in water or boiled in oil, crushed by huge boulder or
forced to do battle with skilled swordsman


It was presumed that the innocent would survive and the guilt would be
killed
France


25. Capital Punishment


Until the middle of the 19th century, the death
penalty was the automatic sentence for a
convicted murderer
20th century:



Jurors were given more discretion in sentencing
Given no guidance by state law in choosing
between life and death sentences
Jurors had total discretion in this decision, which
could not be reviewed on appeal

26. Means of Execution

The five means of execution currently used in
the United States


Firing squad

Electric chair

Gas chamber


Hanging
Lethal injection
Lethal injection is considered by some to be
the only politically correct method

27. Is Capital Punishment Cruel and
Unusual?

Furm a n v. G e o rg ia (1972)

Landmark case in which Supreme Court called
for a ban on the death penalty in Georgia

Ruled its law as it stood was capricious and
hence, cruel and unusual punishment

The Court ruled that the states had to give judges
and juries more guidance in capital sentencing to
prevent discretionary use of the death penalty

It held that Georgia’s death penalty was invalid

28. Is Capital Punishment Cruel and
Unusual?


Due to the Furman case, executions were
suspended across the country
The federal government passed a new death
penalty law instituting a new two-step process
(bifurcated trial):
1.
2.
Determine innocence or guilt
Determine whether to seek the death penalty

29. Is Capital Punishment Cruel and
Unusual?

G re g g v. G e o rg ia (1976)

The Supreme Court reinstated the Georgia death
penalty by sustaining its revised death penalty
law

The death penalty itself is not cruel and unusual
punishment

A capital case now requires a bifurcated trial

30. Lengthy Delays in Execution as
Cruel and Unusual


Do long delays in carrying out executions
constitute cruel and unusual punishment?
Tho m p s o n v. M N il (2009)
c e

The Supreme Court rejected an appeal that
claimed a 32 year imprisonment caused by his
appeals constituted cruel and unusual
punishment

31. Who Can Be Executed?




As a general rule the Supreme Court has
upheld the death penalty for murder but not
other crimes
The punishment must be related to the crime
It only makes sense that the death penalty is
only applied to a case where a life has been
taken
The death penalty should only be applied in
the most heinous crimes

32. Who Can Be Executed?

Age

Ro p e r v. Sim m o ns (2005)
 The
8th and 14th Amendments will not permit executing
anyone under 18 years of age for committing a crime

Race

M Cle s ky v. Ke m p (1987)
c
 Defendant
presented a study contending that capital
punishment in Georgia was filled with racial
discrimination
 Court rule that his study was valid, however, he had
not proved the sentence was the result of racial
discrimination

33. Who Can Be Executed?

Mental Retardation

A
tkins v. Virg inia (2002)
 The
Supreme Court has prohibited executing the
mentally retarded

The Mentally Ill


The Supreme Court banned execution of the
insane
Fo rd v. Wa inwrig ht (1986)
 An
inmate that becomes mentally ill while in prison
can not be executed

34. Appeals


All but one state that has the death penalty
require automatic appellate review of death
sentences
Because capital punishment is the ultimate
sanction a government can inflict, appeals are
certain and lengthy

35. Costs of the Death Penalty




Death penalty cases are very expensive
One report showed California spending $138
million per year on the death penalty
The annual costs of incarcerating death row
inmates is significantly higher than those spent
to incarcerate a prisoner serving a life
sentence
States are debating the cost effectiveness of
maintaining the death penalty

36. Juries and Capital Punishment


Courts are continued to hear matters
pertaining to the death penalty and specifically
how potential jurors object or favor the death
penalty
Sim m o ns v. So uth Ca ro lina

Court held that if the prosecution contends a
defendant should be put to death because he is
too dangerous to ever return to society, without
informing the jury of the option of a sentence of
life without parole, this action could be considered
a denial of due process

37. Juries and Capital Punishment

Ring v. A o na (2002)
riz

Court ruled that capital punishment can be
imposed only by a jury or a judge following a
jury’s recommendation

38. Continuing Controversy




The death penalty will be an issue for years to
come
With strong advocates and opponents, the
core of the issue will be the question of values
The Gallup Poll results indicate that the public
still supports the death penalty
Many researchers reject the notion that the
death penalty acts as a deterrent to murder

39. 8th Amendment and Corrections


Due process and equal protection issues are
significant concerns in corrections because
violations of these rights are unconstitutional
8th Amendment rights are divides into two
categories:
1.
2.
Actions against individual prisoners
Institutional conditions

40. 8th Amendment and Corrections

Cases based on the 8th Amendment for
prisoners include:

Overcrowding

Solitary confinement

Corporal punishment

Physical abuse

Use of force

Treatment and rehabilitation, the right not to be
treated

Death penalty

41. Prisoner Treatment and the 8th
Amendment


The Supreme Court has been called on to
determine whether conditions and actions
within correctional institutions constitute cruel
and unusual punishment
Rho d e s v. Cha p m a n (1981)


Double-celling and crowding do not necessarily
constitute cruel and unusual punishment
Wils o n v. Se ite r (1991)

Prisoners must prove prison conditions are
objectively cruel and unusual and show they exist
because of officials’ deliberate indifference

42. Prisoner Treatment and the 8th
Amendment

Ho p e v. Pe lz e r (2002)


The conditions must be shown to involve wanton
and unnecessary infliction of pain and to be
grossly disproportionate to the severity of the
crime warranting imprisonment
Handcuffing an inmate to a post as punishment
for bad behavior was found to be cruel and
unusual punishment