Friends and neighbors,  

The rights protected by the Eighth Amendment of the Constitution are those that I hope few of us ever must invoke. They are generally only implicated after we have been charged with a crime or found guilty of the crime. But if we do, thankfully, the Eight Amendment prohibits cruel and unusual punishment for criminal convictions as well as prohibits the government from imposing excessive fines or bail.

The Eighth Amendment reads:

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

The last clause of the Eighth Amendment, the prohibition on cruel and unusual punishments, has been subject to the most controversy, litigation, and debate. The clause traces its roots back to 1689 when England adopted its own Bill of Rights that also prohibited cruel and unusual punishments. During the Constitutional Convention and debates surrounding our country’s new Constitution, many feared that Congress’ new authority to create federal crimes would also allow it to inflict cruel punishments as a means of oppressing the people.

Today, the debate on the Cruel and Unusual Punishments Clause largely centers on what cruel and unusual means. Judges and legal scholars have argued that the clause should be interpreted based on the standards of 1791 when the Eighth Amendment was adopted. Others think that we should use modern views of mortality and norms to decide when punishments are unconstitutional.

While this debate is still ongoing, there is case law from the Supreme Court interpreting the Eighth Amendment. Since 1910, through the Weems v. United States decision, the Supreme Court has held that penalties and other punishments that are grossly disproportionate to the seriousness of the offense committed is cruel and unusual. During my time as a member of the Minnesota Senate Judiciary Committee, disproportionate penalty issues were frequently discussed.

The death penalty has also been held constitutional under the Eighth Amendment despite many legal challenges by some to try to have the U.S. Supreme Court hold the opposite view. Over the years, the Supreme Court has limited the use of the death penalty to those who are not insane at the time of execution, those without mental disabilities, and those who are over 18 years old at the time of the offense.

As for the Eighth Amendment’s protections against excessive bail, the Supreme Court has held that bail can be denied if the charge against a defendant is serious enough. Once bail is set, however, the amount will likely be upheld on an appeal so long as the amount is reasonably calculated to only ensure that the defendant appears at trial, which is a fundamental purpose of bail. 

Relating to excessive fines, the recent Supreme Court also held, through the Timbs v. Indiana (2019) decision, that the Excessive Fines Clause of the Eighth Amendment offers protections against not just the federal government but includes local and state authorities as well. In this historic ruling, it was determined that under the Due Process clause of the Fourteenth Amendment, state governments must comply with the prohibition against “excessive fines.”

Through each of the first eight amendments in the Bill of Rights, a common theme is one of limiting the power of government from encroaching on citizens’ individual liberties. These protections for individual liberties in each amendment stemmed from the founders’ experience of an abusive government in England and elsewhere. They understood that a single person can easily be overwhelmed by that power, so they balanced and limited that power in the Constitution through these amendments.

Next week, I will write about the Ninth Amendment and its protection of rights retained by the people that are not specifically enumerated in the Constitution. 

I enjoy hearing from you about our Constitution and the rights it affords us. You need to know your rights to use them. There is no other country that has such a strong constitution. You can call me at 651-296-5655 or send me an email at sen.mary.kiffmeyer@senate.mn. Please also take time to talk with others about our timeless and incredibly valuable Constitution that is available to you and in use every day of your life. 

Sincerely,

Mary